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The Building Safety Bill – Change is Afoot

Posted on 1 September 2021

The Building Safety Bill, currently working its way through Parliament, has been heralded as a plan to bring about the most significant change to building safety regulation in decades.

The legislation is in its early stages and it will be the subject of debate and amendment in Parliament. As such, it is impossible to predict with certainty what its final form will be by the time the bill becomes an Act and is implemented. Royal Assent is not anticipated until spring 2022 at the earliest, with the relevant provisions perhaps coming into force around 12-18 months later. However, the Bill as it has been published warrants scrutiny now in order to understand the direction of travel.

A New Regulatory Framework

The Bill proposes that a new Building Safety Regulator will be created to oversee construction and a building's safety system. This new body will have a range of enforcement powers in relation to high-rise buildings. The Regulator will maintain a register of building inspectors and building control approvers, in an attempt to drive up standards. It will have the power to take action against those who are considered to be underperforming.

Special measures will apply specifically to buildings of at least 18 metres in height (drawing the same distinction as current Building Regulations), or those with at least seven storeys and two residential units. Different dutyholders are to bear responsibility for a building's safety depending on the stage of its lifespan. There will be mandatory reporting to the Regulator at various stages. The intention is for every high-rise building in the country to have an accountable person with responsibility for ensuring the building meets statutory requirements. Existing occupied high-rise buildings will need to be registered with the Regulator, and new ones will need registering before being occupied.

The responsible person will be required to designate a "building safety manager", who will take charge of the building from a safety perspective.

There will also be changes to the Fire Safety Order to dovetail with the new roles of responsible person and building safety manager concerning fire safety. Breaches of the FSO will result in fines, which are being beefed up. It is proposed that personal liability be introduced for directors/managers of companies with responsibility that fall short of their duties, and the most serious failings could be punished by prison sentences up to two years. The Regulator will be able to serve notice on a building if it has concerns, setting a deadline for rectification. Failure to comply will be a criminal offence. In extremis, a building can be put into "special measures" and the Regulator will effectively take over its management to restore it to a position of safety.

Furthermore, there will be a national regulator of construction products, with the power to remove products from the market if they are deemed unsafe. A New Homes Ombudsman will be set up to resolve disputes relating to new build homes.

Limitation Extension

The Bill proposes an amendment to the Limitation Act 1980, to ensure that the period within which claims can be made under the Defective Premises Act 1972 (which provides that residential dwellings must be fit for habitation) is extended from 6 years to 15 years from completion of the works. This is proposed to apply retrospectively, which raises the prospect of bringing a wave of historic claims that were previously time-barred "back to life". It is also proposed that the DPA's scope will be extended to cover refurbishment work to a dwelling as well as its original construction.

It is presently unclear whether the Bill will assist those leaseholders who have already borne the burden of paying for remedial costs to their buildings in respect of historic façade/cladding defects (particularly where such buildings are less than 18 metres in height). The legislation will have to be reviewed in its final form, given political pressure in this regard is expected to be significant.

Conclusion

It remains to be seen how many of the above propositions will survive the parliamentary process, and we can certainly expect most of the proposals to be the subject of fierce lobbying from industry stakeholders. What is clear is that there is a consensus in favour of regulatory overhaul in the wake of the Grenfell Tower tragedy, and there will be wide-ranging implications for property owners, occupiers and all those involved in the design and construction of buildings.

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