Sponsor segment - A view from the top: the Building Safety Bill explained

Monday 6 September 2021

The Building Safety Bill (the Bill) was introduced to the House of Commons on 5 July 2021, four years after the tragic events of Grenfell, with the expectation that it would help to end the cladding crisis which has affected millions of leaseholders across the country.  

Building Safety Regulator 

The new Building Safety Regulator will sit within the Health & Safety Executive (HSE) and regulate all new buildings. Its main role will be to oversee that regulatory requirements are met for higher-risk buildings (buildings which are at least 18 metres high, or at least seven storeys, or containing at least two residential units).  

The Regulator’s powers will be wide-ranging, including the ability to issue compliance and stop notices, powers of entry and powers to replace an accountable person or building safety manager with a special measures manager where they find serious failures which put in jeopardy the safety of residents in the building. The Bill extends the existing time limits for certain notices under the Building Act 1983 in relation to non-compliance with building regulations from two years to ten years. 

Extension to the limitation period of the Defective Premises Act 1972 

On the topic of time limits, the limitation period for breaches of the duties contained in the Defective Premises Act 1972 (DPA) have been extended from six to 15 years regardless of the height of the building and this will apply both prospectively and retrospectively. This means that proceedings can be brought against anyone responsible for any defective building including designers, contractors and developers. 

This will obviously be welcome news for so many homeowners but in reality, the longer period will not be of use if say the responsible developer is now insolvent. Even if the opponent is solvent, given the times we are presently in, many will have little or no appetite for litigation.  

It is not clear how this will affect insurance as some policies may only cover breaches of legislation in force at the time of the relevant works.  If the floodgates did open and lots of retrospective claims were made, this is likely to increase premiums. 

Section 126(5) of the Bill provides that the extended limitation period for actions under the DPA will not apply where it would breach the defendant’s human rights. There are discussions on the horizon that retrospective claims could infringe on Article 6 of the European Convention on Human Rights (right to fair trial). Whether there is a breach or not will be fact specific and will depend on whether the lapse of time has caused difficulties in preparing a defence. 

Dutyholders and the accountable person 

The dutyholder will be responsible for fire and building safety throughout the lifecycle of the construction of the building. Upon completion and once the building is occupied, the accountable person is appointed. The accountable person will have a number of statutory duties, mainly a duty to ensure that the building is registered with the Regulator, to appoint a competent building safety manager and to obtain a Building Assurance Certificate which will confirm compliance with their various safety duties. This is likely to be the freeholder, head leaseholder or management company. 

The gateways 

In order to preserve the ‘golden thread’ of information and to ensure that safety considerations are in play throughout a construction project, there will be three overarching gateways which will govern how higher-risk buildings are designed and constructed. The purpose of these stop/start gateways is to ensure compliance with each stage before going onto the next stage, which should improve the overall quality of the workmanship.  

Failure to provide sufficient information to the Regulator at any stage means delays to works commencing or completing, which will attract additional costs.  

The future 

While some insurance policies may cover cladding related issues, many of the newer policies now exclude liability arising from fire safety and external cladding materials to a very significant extent. 

As a result, many private leaseholders are finding that they are facing large bills to carry out remedial works and/or are unable to remortgage or sell because the building is so unsafe. 

The Bill has introduced a new duty for building owners to take all reasonable steps to seek alternative ways to meet the cost of remediation works before these costs can be passed to homeowners. Developers will be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to homebuyers where necessary; while a new building safety charge, payable by leaseholders, will cover ongoing but not historical costs. 

The aim of the Bill is to raise building safety standards so that the horrific tragedy that befell Grenfell is never repeated. The Bill is anticipated to be enacted later this year but prior to this becoming law, there may be further amendments to watch out for.   

Priya Sejpal (priya.sejpal@blmlaw.com) is a Property Litigation Associate at BLM. Priya has over ten years’ experience in property litigation, residential dispute resolution and commercial disputes in the UK. She is highly efficient, pragmatic and a very strategic litigator. 

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