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There is a new "Sheriff" (of Higher-Risk Residential Buildings) in town

Posted on 28 July 2022

The New Building Safety Regulator

Following the tragic events of Grenfell five years ago, the long-awaited Building Safety Act 2022 ("the Act") is now in force, although some parts will not be effective for another 12-18 months. The Act introduces, alongside a host of other changes to building safety rules, a new, rigorous regulatory regime for high-risk residential buildings ("HRBs") – buildings with seven or more storeys or that are 18 metres or higher, and either have at least two residential units or are hospitals or care homes (during the design and construction phases). The application of the HRB definition is therefore broad, and the rules applying to HRBs are likely to cover a wide range of buildings and their various uses.

As part of these regulatory changes, a new 'sheriff' has been created in the form of the Building Safety Regulator ("BSR") (since 28 June 2022), responsible for the building safety regime applicable to HRBs.

Before the Act was introduced, building safety and the associated building control function was overseen by local authorities, fire and rescue authorities and approved inspectors. The BSR, housed within the Health and Safety Executive ("HSE"), now seeks to carry out three primary functions:

  • oversee the safety and standards of all buildings;
  • help and encourage the built environment industry and building control professionals to improve their competence; and
  • lead the implementation of the new regulatory framework for high-rise buildings.

The BSR is responsible for enforcing the new legislation and will not hesitate to impose tough sanctions for those that fail to comply with the new building safety standards under the Act. Before now, the safety industry felt that the HSE had significant enforcement powers, however the new regulator has even more authority:

Before any applicable building work relating to HRBs begins, building control approval must be obtained from the new BSR

  • The BSR will also have responsibility and oversight over all building control professionals, both in the public and private sector – including local authorities and registered building control approvers
  • The HSE is a statutory consultee for planning applications
  • Mandatory reporting of prescribed fire and structural safety occurrences to the BSR
  • Overseeing dutyholder responsibilities as buildings are designed, built, refurbished and occupied – including the registration of new and existing buildings, and the review of the 'safety case report' (identifies a building's fire and structural safety defects) prepared by the new Accountable Person – namely an organisation or person with responsibility for managing building safety risks

Developers, investors, leaseholders, occupiers, contractors and building control inspectors – all potential dutyholders – need to be aware of the wide-ranging powers afforded to the BSR. The BSR can:

  • suspend or remove building control inspectors;
  • prosecute organisations for failing to comply with UK building regulations;
  • prosecute building control inspectors, individual director and managers where the offence is committed by a corporate entity with their consent, connivance or neglect; and
  • issue compliance and stop notices – with non-compliance carrying a maximum sentence of an unlimited fine and/or two years in prison for individuals.

It is clear, with this being just a fraction of the impact felt by dutyholders, that the Act may well be as groundbreaking for building safety as initially anticipated two years before it came into force in May 2022.

Are there more 'sheriffs' on the way?

The Act goes further than limiting its regulatory reach to influence HRBs. Aside from the setting up of the new BSR as outlined above, the Act has established new regulatory powers to strengthen the marketing and supply of construction products in the UK. There are new requirements to ensure that more products are safe for use, i.e. under normal and foreseeable conditions, the product does not present any risk to the health and safety of persons or if it does, the risk is as low as it can be, compatible with using the product. These powers have been extended to include all construction products and not only those used in the construction or refurbishment of HRB's.

The Act will also introduce a new National Regulator for Construction Products (forming a new division within the Office for Product Safety and Standards) to oversee and enforce the rules, as well as both civil and criminal penalties for breaches of the new rules.

The Construction Products Regulator, whose powers will likely take effect by October 2023, will conduct market surveillance to quickly spot and remove unsafe materials. It will conduct and commission its own product testing to investigate non-compliance. This is yet another regulator that will take robust action against those breaking the rules, including powers to enter, inspect and search premises, require the withdrawal of products from the market and issue fines for old, new and future products. Consequently, the Act introduces a new cause of action that will enable claims to be brought against construction product manufacturers and suppliers where a product has been mis-sold, found to be inherently defective, or there has been a breach of existing construction product regulations. If this contributes to, or causes a residential dwelling to become ‘unfit for habitation’, a civil claim may be brought through the courts. Those affected will have a retrospective 30 years to bring a claim for defective cladding products only and 15 years to bring a claim for all construction products.

Both the BSR and the Construction Products Regulator are going to need to work together to ensure that construction products are not only safe but correctly installed. In turn, those involved in the design, construction, management and occupation of buildings will have to ensure that they understand the extent of their building safety responsibilities in order to demonstrate their 'accountability'. It is anticipated that the new building safety regulatory regime will also impact more broadly upon those dutyholders responsible for commercial buildings as well as HRBs, as we can see from the construction products requirements, which applies to all buildings.

What should be done now?

The Act seeks to establish a committed regulator in the form of the BSR to improve standards and has powers of oversight and enforcement to ensure that safety requirements are satisfactorily met in HRBs.

The introduction of the Act means that all dutyholders will need to manage building safety risks and determine lines of accountability and responsibility at all stages of HRB projects, from initial design to occupation, or face the wrath of these new regulators. As their powers illustrate, they are not here to simply offer friendly words of advice – they are here to enforce the strict new building safety regime and businesses must be prepared for this.

In the short term, the Act will undoubtedly put pressure upon the real estate development market and construction industry as developers, contractors, consultants and product manufacturers and suppliers find that their potential liabilities widen. In Martlet Homes v Mulalley & Co, the contractor was deemed responsible for the defective design and installation of cladding in high rise flats. This seeks to give much needed guidance on liability issues affecting the hundreds of cladding disputes in the UK, but likely marks the start of many more court proceedings to determine who should be held accountable by the regulators.

Those that own or manage an occupied HRB should understand the new dutyholder roles and responsibilities and should collect detailed, accurate information in order to prepare a safety case report and register their buildings. We await the development of the full Act and its wide ranging impact, along with secondary legislation to support the Act, over the next 12-18 months. In the meantime, the regulators will seek to apportion liability to dutyholders. The only way for dutyholders to mitigate the risk of being held accountable for building safety risk is to be proactive and have an acute awareness of the wide-ranging impact of the new Act.

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