This article was co-authored by Aoife Dunne, Trainee Solicitor, London.
Whilst the Building Safety Act 2022 (the Act) is now in force, only a limited amount of provisions have taken effect, with the remainder expected to become law during 2023.
The Act, which received Royal Assent in April this year, creates a new regulatory regime and a new Building Safety Regulator (BSR) for all building work of any kind on any building. It also creates a more stringent process for higher-risk buildings (HRBs), regulating these buildings throughout their operating life. It’s aim is to deliver a system that is fit for purpose and provides improved accountability, risk management and assurance of safety to those living in HRB’s.
There is still much to be determined regarding the operation of the Act, which is expected to be resolved through secondary legislation, some of which will not come into force for a further 6 to 12 months. A transition plan which seeks to provide a detailed timeline of the plans to implement the new building safety regime can be found on the UK Government’s website.
Below, we take a look at the key elements implemented so far and what we anticipate seeing in the next year.
Two New Roles
The most significant and immediate change is probably the establishment of two key roles, the Building Safety Regulator (BSR) and the Accountable Person (AP).
Central to the new regime is the creation of a national BSR - embedded within the Health and Safety Executive (HSE) with responsibilities for monitoring the safety of all buildings in England.
The BSR’s three main functions are:
- To oversee safety and standards of all buildings.
- Encourage increased competence within the industry and building control professionals; and
- Lead the implementation of the new building control approval regime for the design, construction and major refurbishment of HRBs.
Wide-ranging powers have been given to the BSR to regulate standards for buildings and construction work, including powers to investigate and prosecute breaches. The BSR will also have the power to set insurance requirements, but cover will need to be obtained from the wider insurance market, rather than a limited number of government-approved schemes as originally proposed (S.48 of the Act removes the requirement for an approved inspector to obtain insurance from a government-approved scheme).
Arguably the most significant change comes in the occupation phase with the advent of the AP. The Act identifies new duty holders known as APs (building owner, freeholder, or management company) who have an ongoing duty to assess building safety risk and provide a ‘safety case report’. The safety case report demonstrates how risks are being identified, mitigated, and managed on an ongoing basis.
In buildings where ownership structures are complex, there may be more than one AP, in which case there will be a Principal Accountable Person (PAP). The AP and PAP will be responsible for registering buildings under their control before they can be occupied, and have ongoing obligations to manage building safety risks during the entire occupation phase.
A further key focus of the Act is maintaining the ‘golden thread’ of vital information to safeguard residents and others against risks, which include fire and structural safety issues. This obligation falls upon duty holders and the AP. The obligation includes a requirement to put measures in place to ensure that current information and documents relating to the design, build, and management of the building are easily accessible throughout its lifetime.
With information and documents in one centrally held digital record, the intention is to ensure that all parties involved will know where to find relevant information to ensure that they can limit risks and respond efficiently.
The golden thread of vital information is the core of the Act and is extremely critical.
Graham Cundy, Director of the Recovery Strategy Unit at the Department for Levelling Up, Housing and Communities said:
The safe design and construction of these HRBs will now be underpinned by three mandatory gateways processes. These are to ensure early consideration is given to fire safety and comprise (a) managing change control, (b) to preserve the integrity of the building, and (c) fire safety information.
The gateway principle is intended to support the creation of the golden thread of vital information.
There are three stages to the new gateway regime:
- Gateway one at the planning application stage;
- Gateway two before construction begins; and
- Gateway three at the completion stage of the works.
Gateway one deals with the planning permission phase and early consideration of fire safety; it will take effect through secondary legislation.
At gateway two, an application that includes the full design intention will have to be provided to, and approved by the BSR before construction work begins, providing a 'hard stop' point until that approval is received.
Gateway three includes handover of the relevant documents to both the BSR and the building owner. If approved, the BSR will issue a completion certificate and the HRRB will be registered on the regulatory system. A building cannot be occupied until the gateway three process has been completed satisfactorily.
Gateways two and three are likely to come into force following April 2023.
Construction product regulations
S147 to 155 of the Act creates a new right of action, namely, the right to sue construction product manufacturers and suppliers for breach of the Construction Products Regulations that causes a building or dwelling to become unfit for habitation.
The relevance for liability insurers is that there is likely to be a tougher testing regime for construction products. We might expect, therefore, greater levels of in-built safety and hopefully less risk for insurers.
What to expect in 2023?
Looking at the year ahead and before the end of October 2023, we expect to see the following come into force:
- Establishment of a Building Advisory Committee, which will provide advice to the BSR on developing future building regulations;
- Establishment of the Industry Competence Committee to publish public guidance on industry competence and advise the Building Safety Regulator on this issue;
- Mandatory registration of building inspectors and building control approvers;
- Mandatory registration of occupied high-risk residential buildings;
- New duties on the Accountable Person with regard to managing safety risks in higher-risk buildings;
- Gateways two and three to come into operation;
- Commencement of mandatory occurrence reporting pertaining to fire and structural safety issues; and
- New requirements for construction products.
The implementation of these provisions in secondary legislation has the potential to shape the industry and the role of professionals and their professional bodies for many years to come. These regulations will have significant implications for professional practices and for contracting, manufacturing and those who own, operate, manage and maintain buildings.
- We are likely to see more onerous processes/compliance requirements which are time consuming and more costly for policyholders. However, the ambition remains to create a safer and lower risk industry.
- Given the strict requirements, notifications relating to the BSR may generate an increase in coverage disputes.
- The duty holder regime regarding accountability could provide grounds for new forms of policy notification.
- A breach of the new regulations may mean a breach in contract, resulting in claims notifications.
It is important, however, to remember that these regulations are being implemented to raise standards, create competence and re-establish confidence in the industry.