Building Safety Act 2022

This is a general note for information and does not replace detailed legal advice – please contact us for advice and support.

Executive Summary

The Building Safety Act 2022 (the “Act”) introduces a new regime overseen by a new Building Safety Regulator.

The Act creates new:

1. Obligations that apply throughout a building’s life cycle;
2. Means for enforcement for breach, including criminal sanction and extension of the limitation period; and
3. Financial costs relating to construction, by way of a developer levy that must be paid before the construction begins.

This note is a high-level summary. Further detailed advice is recommended. For example the Act contains detailed rights for tenants (implied lease terms, service charge rules, and building management obligations), and new competency rules for building inspectors (different classes of building inspector – Class 1 to 4 depending upon building risk), which are not covered below. There are also differences between application of the Act in England and Wales due to devolved government.

When is it in force?

The Act came into force on 28 April 2022.

The Act’s provisions will be enforced by a series of secondary legislation, for example through regulations and other statutory instruments over the next 18 months.  

The Government has introduced a timetable for when these particular regulations will be brought into force. It can be broken down into 3 periods:

1. Within two months of the Act, the extended limitation periods were brought into force. This occurred on 28 June 2022.
2. Within 12 months of the Act, the structures that support the new building safety regime will be brought into force. For example, architect’s registration board powers strengthened, and the Regulatory Reform (Fire Safety) Order 2005 changes will be made. This is likely to be 28 April 2023.
3. Within 18 months of the Act, most changes that directly affect the industry will come into force. For example, Gateways 2 and 3, Developer Levy, Golden Thread of Information. This is likely to be 28 October 2023.

What is a higher risk building?

Section 31 of the Act defines a higher-risk building as a building that is at least 18 metres in height or has at least 7 storeys, and contains at least 2 residential units.

1. The government is currently consulting on some specific building types, for example:
   1. A care home
   2. A hospital
   3. A prison
   4. A hotel

so, it will be important to monitor the regulations as they apply moving forward.

Buildings during design and construction

The Act introduces the role of a Building Safety Regulator (“BSR”). The BSR is responsible for all regulatory decisions under the Act during the design, construction, occupation, and refurbishment of higher-risk buildings.

A “Gateway regime” is introduced to ensure that those involved in the project turn their minds to the building safety issues at three distinct points during the design and construction process. The stages are as follows:

1. Gateway 1 – This stage is prior to the Dutyholders (See section 5 below) being in place. The requirements under this gateway are fulfilled by those applying for the planning permissions for developments containing higher-risk buildings.
2. Gateway 2 – This stage is prior to the construction work. The Dutyholder must provide a building control body with their full design intention. This is a hard stop where construction cannot begin until the BSR is satisfied that the Dutyholder’s design meets functional requirements of building regulations and does not contain any unrealistic safety management expectations.
3. Gateway 3 – This stage occurs at completion or final certificate phase, where building control assess if the works have been carried out to the building control standard.

Before building work commences, also known as “Gateway 1”:

1. If proposing to construct or create a higher risk building an applicant must apply to the BSR with plans and new prescribed documents.
2. The work cannot commence without BSR approval.
3. BSR will discuss with a multi-disciplinary team, which includes, fire and rescue authority and sewerage undertaker and determine the application within 12 weeks.
4. If the application is approved, the BSR will agree a bespoke inspection schedule with the applicant. The BSR must be notified at these stages for inspection to take place.
5. Building work can then take place, subject to the BSR requirements agreed.

Construction phase, also known as “Gateway 2”:

1. BSR carries out inspections at the agreed stages. Please note, inspections can also be carried out without notice.
2. Dutyholders must comply with their duties, mandatory occurrence reporting requirements and golden thread requirements.
3. Should the applicant want to change from the original building control approval application, it is necessary to determine if it is a “major” or a “notifiable” change. The steps are then as follows:
   1. MAJOR – applicant must submit change application to BSR. BSR then has 6 weeks to determine the application and the change cannot be made without BSR approval.
   2. NOTIFIABLE – applicant must submit the change notification to BSR. BSR has 10 working days to make any comments on this notification. If BSR has not raised any comments or concerns, the change can be carried out once 10 working day period has elapsed.

Building work complete, also known as “Gateway 3”:

1. On full completion:
   1. If the building work on the higher-risk building is complete, the applicant must submit a completion certificate application to the BSR for approval and the golden thread information (See section 6 below) must be handed over to the accountable person.
   2. Note: Accountable Person can be a person who (1) holds the legal estate in possession in any part of the common parts; or (2) a person who is under a relevant repairing obligation in relation to any part of the common parts.
   3. BSR will then assess the application, do a final inspection of the building work and if satisfied, BSR will issue a completion certificate.
   4. The accountable person can then register the building for occupation. Please note, this is different to the building control process.
2. On partial completion:
   1. If building work on a relevant part of the higher-risk building is complete, applicant must submit a partial completion certificate application to BSR for approval and golden thread information must be handed over to accountable person.
   2. BSR will then assess the application, do a final inspection of the relevant building work and if satisfied, will issue a partial completion certificate for that specific work. The accountable person can then register the part of the building which has a completion certificate, for occupation.
   3. The rest of the building which is not complete, work continues, and once works are complete the above process applies each time work is completed on the higher-risk building.
   4. Fire Safety Order and it is the accountable person’s duty to assess and manage building safety risks once occupation commences.

Dutyholder

Dutyholders involved with higher-risk buildings are identified as 5 main roles, these being:

1. Client
2. Principal designer
3. Principal contractor
4. Designer

The draft regulations provide a basic understanding of the intended responsibilities of a Dutyholder. These are:

1. General duty to govern the way building work is carried out.
2. Competency requirements.
3. Anyone appointing a prescribed person, must take reasonable steps to assess the competency of those that they employ.
4. Golden thread information be available in digital format.
5. A requirement for all Dutyholders to report safety concerns to the BSR throughout building lifecycle.

Golden thread of information

This information allows users to understand a building and the steps needed to keep both the building and people safe now and in the future. It is a requirement to create, collate and share prescribed documents and information to satisfy a “golden thread” of information running through the lifecycle of every higher-risk building.

Again, the Government is consulting before it brings forward additional regulations in this area but essentially the golden thread is intended to contain all information required to demonstrate compliance with building regulations and preserve safety of occupants, so the required information may change depending on the building.

Building Safety levy

A developer levy will apply when a developer seeks permission to develop certain high-rise buildings in England.

This levy is appliable at Gateway 2, as set out above.

The sanction for failure to pay this levy is that it would result in Gateway 2 not being signed off and therefore, construction could not commence.

Civil Liability – extended limitation period

The Act extends the existing liability period by introducing Section 4B of the Limitation Act 1980.

For claims made under section 38 of the Building Act 1984, i.e., claims made by private individuals for breach of building regulations, the limitation period has been extended to 15 years. These claims can be made by private individuals as they have a right to claim damages where they suffer harm because of work on a building has not met building regulation standard.

For claims made against construction project manufacturers arising from breaches of the Construction Products Regulations, the limitation period has also been extended to 15 years.

For claims made under the Defective Premises Act 1972 (“DPA”), i.e., claims made where a building is unfit for human habitation, the limitation period has been extended. The limitation period covers claims which have arisen over the last 30 years and for the 15 years going forward. A claim can be made under the DPA to cover both the initial construction and later alterations undertaken on an existing dwelling, provided that work is done in the course of business and that work makes the dwelling unfit for habitation.

Building Liability Orders

This was introduced to address the possibility that certain developers might escape civil liability for safety defects because they have carried out projects through shell companies or special purpose vehicles (SPVs) or the original constructor company is dormant or insolvent.

A Building Liability Order may be granted by the High Court to extend the liabilities of a company to any of its associates and make them jointly or severally liable. An example of this is a parent company and its subsidiary.

A Building Liability Order can still be granted, even if the original company has been dissolved. The Building Liability Order can still be made in respect of its associated company, as long as it is just and equitable to do so.

This can be made in relation to any civil liability claim outlined above, as a result of a building safety risk. This means a risk to the safety of people in or about the building, arising from the spread of fire or structural failure.