The Building Safety Act 2022 (the Act) received Royal Assent on 28 April 2022. Whilst most provisions are yet to come into force, it is expected that the Act will revolutionise building safety within England, Wales and Scotland. This article will focus on the Act’s impact on the English legal landscape.
The Act is intended to capture all stages of the build process referred to as the three ‘Gateways’, namely: planning, pre-construction procurement, and planning and occupation. As a result, it is expected that the legislation will have a wide-ranging impact on both the construction and property management sectors, by introducing a number of new roles and responsibilities in an effort to ensure the safety of homeowners and residents within higher-risk buildings.
One role introduced by the Act is that of the ‘Accountable Person’. The Act confirms that all occupied higher-risk buildings (i.e., all buildings with a height of 18 metres or more, or at least seven storeys (whichever is reached first) and which contain two or more dwellings, or two or more rooms for residential purposes or student accommodation), will be required to have at least one clearly identifiable Accountable Person, who is responsible for ensuring that the fire and structural safety is properly managed for the whole building.
Section 72(1) of the Act defines an ‘Accountable Person’ as:
- A person who holds a legal estate in possession in any part of the common parts; or
- A person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts.
Guidance recently issued by the HSE further confirms that: “this will be the organisation or person who owns or has responsibility for the building. It may also be the organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies”.
The definition of an ‘Accountable Person’ has therefore been defined to capture any individual, partnership or corporate body with obligations for ensuring that fire and structural safety are managed. This could be the freeholder, head lessee or even a management company depending upon the individual circumstances. The key duties of the ‘Accountable Person’ are also broadly defined under the Act and include:
- Ensuring a completion certificate is obtained from the Building Safety Regulator before the relevant part of the building is occupied.
- Registering the building with the Building Safety Regulator before it is occupied.
- As soon as the building is occupied:
- Assessing building safety risks (and continuing to do so on an ongoing and regular basis); and
- Preparing a Safety Case Report to evidence how they intend to meet the above responsibilities including mitigating risks and providing a copy of it to the Building Safety Regulator, updating it when necessary.
- More generally, taking all reasonable steps to prevent building safety risks materialising and major incidents occurring.
- Retaining the 'Golden Thread' information about the building, and ensuring that the information is accurate, easily understandable, up to date and readily accessible.
Finally, the Act has also introduced the role of Principal Accountable Person. In a building with more than one Accountable Person, the Act confirms that this will be the party who owns the structure and exterior of the building, or has a repairing obligation in relation to the same.
The definition of an ‘Accountable Person’ has no doubt been defined broadly with the aim of avoiding a situation whereby those responsible for building safety seek to avoid liability as a result of a too narrowly defined role. This should provide increased protection for homeowners and residents. At the same time, this may lead to ambiguity in situations involving more than one ‘Accountable Person’. In the absence of clearly defined obligations, whether by contract or otherwise, this could lead to confusion or even protracted arguments as to respective responsibilities. Those with responsibilities for higher-risk buildings should carefully consider these risks when entering or renegotiating contracts.
In addition, all duty holders falling within the definition of an ‘Accountable Person’ must ensure that they and/or their employees are prepared to undertake the role defined by the Act, which may require a degree of cultural change in methods of record keeping, staff training and the like.
Whilst many of the provisions of the Act are yet to come into force, these are expected to be implemented within the next 12 to 18 months. Duty holders should therefore start making the necessary preparations to ensure their systems, procedures and capabilities satisfy the requirements of the Act.
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