On 5 July 2021 the Building Safety Bill (the Bill), which implements the Government’s commitment to reforming the building safety system following the tragedy of the Grenfell Tower fire, had its first reading in the House of Commons. Its second reading is due to take place on 21 July 2021.
The Bill “is the next step in ground-breaking reforms to give residents and homeowners more rights, powers and protections – making homes across the country safer”[1]:
In this article, Emma Lloyd, Partner and Louisa Hartley, Solicitor summarise some of the Bill’s key points.
The Building Safety Regulator
The Bill establishes a Building Safety Regulator (within the Health and Safety Executive) which will have three main functions:
- to implement and enforce a new, more stringent regulatory regime during the design, construction, occupation and refurbishment of higher-risk buildings, currently defined as buildings of at least 18 metres or 7 storeys tall (whichever is reached first) and containing at least two residential units;
- to oversee the safety and performance of all buildings by ensuring new and existing regulations are complied with, with the power to issue compliance notices to ensure rectification of non-compliance within a set time period, and stop notices so that work is paused until non-compliance is addressed;
- to encourage the improvement of competence across the built environment sector by establishing an industry-led competence committee, carrying out research and analysis and publishing advice and guidance.
Building control authorities and building regulations
The new regulatory regime will regulate higher-risk buildings during the design, construction and refurbishment phases of a building’s lifecycle. The Secretary of State has the power to define which buildings are deemed “higher-risk” and which are excluded from the definition.
The Building Safety Regulator will be the building control authority for work undertaken on higher-risk buildings, or work which will result in a building becoming or ceasing to be a higher-risk building e.g. the addition or removal of storeys. This means the local authority will no longer be responsible for enforcing the requirements of building regulations in respect of work carried out on higher-risk buildings.
Schedule 1 of the Building Act 1984 will be amended to impose duties on relevant persons who should be held accountable for building safety throughout the design and construction of a building project, known as dutyholders. Dutyholders can be either an individual or an organisation or legal entity and will include those commissioning or undertaking work, as well as those people controlling or managing the work.
Occupied Higher-risk buildings
Higher-risk buildings are deemed to be more at risk from fire or structural collapse. The Bill establishes an Accountable Person who will have a statutory obligation to maintain the internal and external fire and structural safety of a building and who will be held to account for the safety of the building. The Accountable Person is the person or entity who either has a legal estate in possession in, or is under a repairing or maintenance obligation for any part of the common parts of the building. They will be responsible for ensuring that higher-risk buildings in occupation are safe, including assessing the safety risks in and around the building, taking necessary steps to address defects and ensuring residents are listened to by putting in place an internal complaints process for safety concerns.
The Bill also places a number of duties on residents in a higher-risk building or an owner of a residential unit in the building, including:
- a duty not to act in a way that creates a significant risk of a building safety risk materialising;
- a duty not to interfere with a relevant safety item;
- a duty to comply with a request made by the accountable person, for information reasonably required in connection with the accountable person’s duties in relation to the assessment and management of building safety risks.
If a resident or owner of a residential unit has not complied with any of the above, the Accountable Person is permitted to serve a notice on them specifying the breach, the action they must take to rectify the breach and what may happen if they fail to comply with the notice, such as paying for the repair or replacement of a safety item.
Safety and standards – remediation and redress
The Bill will improve homeowners’ rights to claim compensation if their property is inhabitable due to poor workmanship and serious defects by increasing the period of time in which they can claim under the Defective Premises Act 1972 from 6 to 15 years. This amendment applies to work undertaken to any part of a relevant building in the course of a business and therefore does not apply to homeowners carrying out work to their property themselves. A relevant building is defined as consisting of or containing one or more dwellings e.g. a house or a block of flats. This change will be retrospective meaning that homeowners will be able to bring a claim if their property was built up to 15 years before the Bill becomes law, as well as for any future work carried out.
The Bill further amends the Defective Premises Act 1972 by including work carried out as part of refurbishment (and not just construction) although this will only apply to work undertaken in the future. Section 38 of the Building Act 1984 will also be brought into force, allowing claims for compensation for physical damage (injury or damage to property) caused by a breach of building regulations. Again, this will only apply to future work but the Bill extends the limitation period to 15 years.
The Bill also introduces a Building Safety Charge to cover the ongoing costs of maintaining building safety as a result of implementing the new regulatory regime. This charge will be separate from the existing service charge leaseholders pay for ongoing management of the building and which landlords currently use to cover building works, such as removing unsafe cladding. Leaseholders will be able to challenge the reasonableness of costs charged via the Building Safety Charge and it cannot be used to pass on the costs of historic remediation.
The Bill does not make leaseholders liable for the costs of work carried out on the structure and exterior of the building, e.g. removing dangerous cladding, however if a lease allows for remediation costs to be passed on to leaseholders, the Bill ensures that it is the responsibility of those who manage the building to secure alternative funding if available. The aim of this is to ensure that landlords do not automatically pass on the cost of remediation works to leaseholders. Instead they are required to seek alternative means of funding e.g. through government grants, warranties, insurance or litigation. If the landlord does not seek other cost recovery avenues before passing on the cost to leaseholders, a tenant can apply for an order that all or any of the remediation costs should not be taken into account when determining the service charge payable.
There has been much criticism of the Bill, with campaigners arguing that it does not go far enough to protect leaseholders from the crippling cost of works required to be undertaken to fix buildings that have failed safety checks following the Grenfell Tower disaster. The Bill’s second reading will be a chance for MPs to debate the general principles of the Bill and it is not expected to be given Royal Assent until at least 9-12 months. We expect the definition of higher-risk buildings to be one of the key points raised as the Bill passes through Parliament. In the meantime, the Bill will be further scrutinised to understand how the new regulatory regime will work in practice and many aspects of the new regime will be given further detail by way of secondary legislation and statutory guidance.
[1] https://www.gov.uk/government/collections/building-safety-bill#building-safety-bill-documents
