The Building Safety Act 2022

Introduction to the Building Safety Act 2022

The Building Safety Bill recieved Royal Assent on 28th April 2022 to create the Building Safety Act

The Building Safety Act centres on who and how the building process will be regulated and who is accountable for what.  It is, for the most part, a huge improvement to the regulatory landscape and will, without question drive a healthier culture centred on improvements in the exchange of information, better design and specification, considered procurement and ensure key details are decided before we are stood on site, scratching heads.

An area of concern is, however, the accompanying changes to the Defective Premises Act 1972, Section 38 of the Building Act 1984 and the implementation of a new Construction Products Cause of Action and Building Liability Order designed to support claims on existing buildings going back in some cases up to 30 years.  The Act is very light on efficient mechamisms to fairly manage disputes.

The Building Safety Bill – Headline Changes

The aim of the Bill is to:

  • Ensure there are clearly identified people responsible for safety during the design, build and occupation of a high-rise residential building.
  • Establish a Building Safety Regulator to hold to account those who break the rules and are not properly managing building safety risks, including taking enforcement action where needed.
  • Give residents in these buildings more routes to raise concerns about safety, and mechanisms to ensure their concerns will be heard and taken seriously.
  • Extend rights to compensation for substandard workmanship and unacceptable defects.
  • Drive the culture change needed across the industry to enable the design and construction of high-quality, safe homes in the years to come.

Primarly the Bill is focussed on improving safety in the construction of High Risk Residential Buildings (>18m), but it will have wider implications and much of the secondary regulation and cultural changes will undoubtedly impact on the wider sector.

Introducing a new Regulator

Most significantly the Bill provides powers to a new Building Safety Regulator who will oversee the construction process and is now empowered to start holding individuals to account and taking enforcement action when required.  It also defines the role of the Construction Products Regulator in providing oversight for testing and control of the supply of construction products – the Construction Products Regulator will have the power to remove product from the market.

The Building Safety Regulator will also oversee the work of the Building Competence Committee to advise it on industry competence, to monitor and facilitate improvement of industry competence and provide guidance.  This work will be particularly focussed on the key actors defined in the Bill (aligned to the CDM regulations), the Client, Principal designer, Principal contractor, Designer and Contractor.

A Building Advisory Committee is also being set up to advise the Building Safety Regulator on issues other than competence.  This replaces the existing Building Regulations Advisory Committee (BRAC).

A Residents’ panel will also be established to ensure the Building Safety Regulator is grounded and in touch with the residents of the high risk buildings.

A Gateway approach

The Bill will see the implementation of specific gateway points at design, construction and completion phases to ensure that safety is considered at each and every stage of a building’s construction, and safety risks are considered at the earliest stage of the planning process.

  • Gateway 1: The planning application stage; tighter controls around the fire statement, competency of those preparing and scrutinising.
  • Gateway 2: the initial building control stage before works commence.
  • Gateway 3: the completion / final certificate phase pre-occupation.

Gateway 2 s of particular significance to the finishes and interiors sector, this gateway provides a “hard stop” where construction cannot begin until the Building Safety Regulator is satisfied that the duty holder’s design meets safety requirements.

Other areas of interest

    The Bill runs to over 200 pages and was subjected to a raft of short order ammendments as it made passage through Parliament, so further interrogation is ongoing, but other key areas covered by the Bill include:

    • Building Safety Risks defined as fire spread (one flat to another or one floor to another) and structural failure.
    • High Risk Buildings defined as those that are at least 18m in height or have at least 7 storeys and have at least two residential units (a dwelling, flat bedroom in a hall of residence or any other unit of living accommodation)
      • This brings into scope care homes and hospitals meeting the same height threshold during design and construction
      • It also brings into scope buildings owned or occupied by the Crown which meet the scope criteria e.g. Crown Estates, Duchy of Lancaster or Duchy of Cornwall or Government Departments. This is in line with the Fire Safety Order and Health and Safety at Work Act which applies to Crown buildings
    • Height will be measured from ground level on the lowest side of the building to the floor surface of the top storey (which does not exclusively contain roof-top machinery or a plant room)
    • New powers for the Secretary of State to use secondary legislation to amend definitions written in the Bill
    • Introduction of a new developer tax a levy on developers ”to ensure that the industry makes a contribution to setting things right”.

    Areas of concerns

    Whilst there are many reasons to applaud the introduction of the Building Safety Bill and the positive impact it is undoubtedly going to have on the construction process going forward, our applause missed a beat when we read and absorbed the impact of section 125 related to the extension of the Defective Premises Act (DPA) 1972.  You may not be familiar with this particular piece of legislation, but it is where the 6 year liability related to claims against defective works is rooted.  This has now been extended to cover rennovatioin as well as new Build and the claims period extended to 30 years (retrospective) for the creation of new dwellings only 15 years (prospectively) for all works (new dwelling and refurbishment).

    New powers have also been introduced through the Construction Products Cause for Action that enable, in the event that a dwelling becomes “unfit for habitation” and it is determined a product has been mis-sold, is found to be inherently defective or if there has been a breach of existing construction product regulations redress can be sought from the Construction Products Manufacturer or Seller directly (regardless of the contractual situaton at the time of construction).  The Building Liability Order also faciliates claims against wider commercial groups that may have been protected by limited liability vehicles.

    The full implications of these changes are yet to be understood, however FIS has raised concerns that the princple of “producer pays” is sound, however, the regulator needs to look carefully at the mechnisms that this is managed and not simply rely on the courts to decide as this would constitute a huge waste of time and resource.

    FIS Formal Position Statement on the Building Safety Bill

    “The Building Safety Bill is to be welcomed and the emphasis on future works and how the process of construction should evolve is pretty much what we have been calling for years. However mechanisms to manage legacy issues must evolve quickly and vitally with the support of Government.  This is essential to avoiding the inevitable avalanche of blame that businesses (including many SMEs) will face.  

    Whilst Polluter Pays is a simple political statement it is a much more complex moral and legal argument. Of course, we have to be accountable for our past deeds and leaseholders should absolutely be protected in every way.  However, amends to the Bill focus on blame, but are light on the mechanisms to manage the myriad of contractual disputes that could emerge through the supply chain.

    Construction disputes are typically multi-faceted, often complicated by shared responsibility and always worse if there is not a clear paper trail.  We need to look to reasons behind and lessons learned from the implementation of the Construction Act to ensure the unintended consequences don’t unravel great progress being made and decimate the sector (creating a shockwave that will impact construction as a whole). 

    Whilst the Bill extends the legacy liability periods for construction, this is not matched with a similar responsibility for those that were part of our risk management equation such as insurers. Looking forwards it recognises the need to change, but when it comes to legacy, it simply doesn’t reflect that, at times, the system itself was failing many of those working in it and that contracts were often signed under duress and do not match the reality on the ground.

     We will continue to work with Government and colleagues in the CPA and CLC to try and find a fair and proportionate approach, but it is vital in doing this that we unite the supply chain and create an environment that doesn’t facilitate the creation of a whole new opportunistic “PPI Claims” type industry and favour those that can (or historically could) afford the best lawyers.  We must ensure that the blame doesn’t land disproportionately on those never set up to succeed by failings elsewhere and the polluters are genuinely held to account, not those it is easiest and most convenient to blame.”

    Timescales for the Building Safety Bill

    The timescales below give insight into when and how the various elements are anticipated to come to bear.

     

    We will continue our work with the wider construction sector in representing the views of our members on this matter and will be raising these concerns through the Civil Service and relevant Politicians over the coming months.

    Building Safety Bill documents

    Guidance on Collaborative Procurement

    The DLUHC has published Guidance on Collaborative Procurement for Design and Construction to Support Building Safety, with the aim of helping clients and the industry to implement procurement practices that will deliver safer buildings post Grenfell. The guidance sets out how public and private sector dutyholders can demonstrate they have used collaborative processes at each of the three gateways under the new regulatory framework to create safe, high‐quality buildings. Including examples of collaborative techniques adopted successfully by other industries, the guidance emphasises that “delivering value for money and safe, high‐performing buildings depend(s) on establishing trusted, collaborative partnerships between the client, the contractor, and the rest of the supply chain”.

    The guidance was launched at an event featuring Dame Judith Hackitt and a recording of the discussion is available to view online.

    FIS hosted an update and debate on the introduction of the Building Safety Bill in October 2020 – you can access a recording of the event here

    View the original announcement of the Building Safety Bill here.

    DEBATE: What does the draft Building Safety Bill mean and how will it impact construction?

    Access the recording of our recent live debate where we gave an overview of draft Bill itself, looking at proposed Gateways, how the Golden Thread of information will be managed and regulated and how the new Regulator will operate.