Industry should prepare for England and Wales’ new building safety regime

Out-Law News | 20 May 2022 | 8:14 am | 5 min. read

Earlier this month the UK government published the 2022 Building Safety Act, designed to update and bolster the existing building safety regime in England and Wales.

In line with the Act, the Health and Safety Executive (HSE) will soon be established as the new building safety regulator, and secondary legislation and published guidance is also expected in the coming months.

But the legislation also includes new duties and requirements which relevant stakeholders will need to pay close attention to.

Role of the Health and Safety Executive

The look and feel of working with the new regulator will be quite different from dealing with the approved inspectors and local authority building control officers that are currently in charge of oversight. HSE is a regulator with teeth, and it will not hesitate to use the newly granted enforcement powers at its disposal.

The immediate challenge for the regulator is that it must  act swiftly, recruiting and training the staff – and establishing the systems and processes – required to get the building safety regime up and running.

The three regulatory gateways

HSE will regulate developments through a series of three ‘gateways’. Permission from the regulator will be required before a development can proceed through each gateway. While ‘gateway one’, which governs the planning stage, is already in force, from October 2023 developers will also have to pass through ‘gateway two’ prior to the start of  building work and ‘gateway three’ upon the works’ completion.

From October 2023, it is expected that projects will be allowed to continue to completion under  the current regulatory regime where construction has already started. New developments, however, will be required to pass through all three gateways.

For ‘gateway two’ a client must submit an application, along with a detailed list of information and documents, to the HSE, which will have 12 weeks to approve or deny the application once they have sufficient information. During construction, if clients wish to carry out work that differs the approved plans, or to depart from the policies described in their construction control plan, they will have to seek pre-approval through a change control process overseen by the regulator.  HSE will have 4 weeks to consider applications for any major change.

Project funders will want to consider whether they are prepared to buy land through forward funding until a project has cleared gateway two, and who bears the risk if there are delays. Thought should also be given to the fact that, since varied works cannot be carried out until HSE approval is given for major changes, the risk of delays to practical completion owing to consenting requirements will need to be addressed in building contracts.

For gateway three a client must apply for a completion certificate, which allows a building to be occupied. The client must confirm that the building complies with building safety regulations and the principal designer and principal contractor must confirm that they have discharged their construction-phase building safety duties. Doing so requires a robust assurance system to provide a director or senior manager with confidence in these statements. The application must be accompanied by as-built golden thread information. HSE will have 12 weeks to consider the application and this cannot be made until the works are complete.

Key contractual concerns will likely centre on allocation of responsibility between counterparties at each gateway stage, the criteria for practical completion, who takes on the risk if there are delays to the determination of an application. Consideration should also be paid to which party will meet any costs – such as council tax and insurance – that might arise between the completion of the works and the approval of the certificate.

New regime for higher risk buildings

The fundamentals of the regime for higher risk buildings during design and construction and occupation remain unchanged from earlier proposals.

The regime currently covers a variety of structures which are over 18 metres tall or have at least seven storeys. It includes multi-occupied residential buildings, mixed use buildings with a residential element, student accommodation and educational accommodation.  The design and construction duties will also apply to new hospitals and care homes. Over time, however, the definition it is likely to expand to include other buildings where people sleep, and buildings of lower height.

HSE will also be responsible for the content of the building regulations and approved documents. The Act will require the regulator to consider whether changes are needed to electrical safety escape staircase, sprinkler systems and the evacuation of disabled persons within the next three years.

Between October 2023 and October 2028, all existing buildings will come into the scope of the regulations.

Building safety dutyholders

The building safety manager role was removed from the legislation as it made its way through the House of Lords. For occupied buildings, duties will fall to the principal accountable person (PAP) or accountable persons. In many buildings, however, the PAP is still likely to need someone to help them comply with their duties.

Residents of higher risk buildings will also have building safety duties. Where they pay service charges, this will include the cost of measures required for the PAP to comply with the regulations in the Building Safety Act.

Extended limitation periods

In July this year, extended limitation periods will be introduced for claims under the Defective Premises Act (DPA). Previously, the standard limitation period for a claim brought against those responsible for “providing a dwelling” not fit for habitation under section one of the DPA was six years from completion of the works.

The new Act changes this, extending the limitation period claims under section one of the DPA to 30 years from the completion of the works for existing buildings and 15 years for new developments. Additionally, this limitation period will apply retrospectively as well as prospectively, meaning that, from the date this provision comes into force, those able to bring such a claim will be able to do so for any relevant works carried out on a building since 1992.

The new Act also introduces equivalent obligations under a new section two A, covering any works done to existing buildings, for example rectification or upgrade works. Claims under this section carry a 15-year prospective limitation period.

The numbers of cases before the courts in relation to DPA claims have been fairly modest to date. We anticipate that this is set to change, and in particular the courts will likely have to address the difficult question of how cases are fairly tried when records and documents may have been lost or destroyed decades ago.

Other key details

The Act will require developers to pay to fix historical building safety defects in buildings they own above 11 metres tall or with five or more storeys. It also contains measures to block access to the planning and building control regimes for parties that do not sign up to industry schemes such as the developer pledge.

Schedule eight of the Act limits the ability of landlords associated with a building’s original developers to recover remediation costs and introduces a New Homes Ombudsman scheme throughout the UK. Section 147 includes a new liability for manufacturers of construction products for the future, and a retrospective claim in relation to cladding which also extends to Scotland.

Separately, the government brought the 2021 Fire Safety Act into force for England on 16 May, putting it beyond doubt that external walls, balconies, windows and flat entrance doors within multi-occupied residential buildings of all heights fall within the scope of existing fire safety legislation.