Building Safety Act 2022: what is changing?

The Act represents a wide-reaching and radical change in the design, construction, and management of higher-risk buildings, such as those like the Grenfell Tower, and enacts the recommendations of the UK government's review into the tragedy.

The new Act will cover flats, maisonettes, and houses in multiple occupation but will not cover individual dwellings. It is, therefore, prudent that developers, contractors, subcontractors, and any other parties involved in the construction and management of higher-risk buildings should start preparing for the impact of the Act and ensure that they are aware of their obligations. 

The Act is designed to address the lack of regulatory oversight and enforcement mechanisms and clarity on roles and responsibilities.

Building safety regulator

The Building Safety Regulator (BSR), under Part 2 of the Act, will oversee the safety and performance of all buildings, as well as having a particular focus on high-rise buildings. 

It will promote competence and organisational capability within the sector, including building control professionals and tradespeople.

Extension of limitation period

The BSA (s135(1)) adds a new section 4B into the Limitation Act 1980, thereby changing the limitation period within which building owners, homeowners and leaseholders can bring claims for defective work relating to a dwelling under the DPA:

• claims under sections 1 and 2A of the DPA are extended from six to 15 years (applicable to claims accrued after the BSA takes effect on 28 June 2022); and
• by making specific provision for a 30-year retrospective period for claims under section 1 of the DPA, where the cause of action accrued before 28 June 2022.

The BSA introduces a new section 10B into the Limitation Act (s150) which extends the liability period for construction products to 15 years from the date the right of action accrues (when the works are completed - ss148(8) and 149(8)).

Concerning defective cladding products, section 150(2) provides that the claimant is eligible for the 30-year limitation period where the right of action has accrued prior to 28 June 2022. However, if it accrues after 28 June 2022, the limitation period expires 15 years thereafter (s150(2)(b)).

Where claims are made retrospectively, this extended 30-year limitation period does not apply to claims that have been previously settled or that have received final determination.

The BSA also provides that the courts must dismiss a claim if it breaches the defendant's human rights. This means that arguments may be raised that are based on the Human Rights Act 1998 and the European Convention on Human Rights.

The limitation periods applicable to claims under the DPA and s149 of the BSA (defective cladding products) will not expire until one year after the new law comes into effect. The BSA provides a one-year buffer for claimants who find themselves close to the end of the 30-year period.

The concept of a 30-year limitation period is unprecedented and will cause concern for developers, contractors, and design professionals (and Personal Injury Insurers in an already tight market). The retrospective limitation period will also no doubt increase the volume of claims regarding historic defects dating back to 1992.

Right to claim damages

The Act will now also allow private individuals the right to claim damages where they suffer harm because work on a building has not met Building Regulations standards under s38. The limitation period for such claims is also extended to 15 years but is not retrospective.

Remediation orders

New enforcement remedies relating to building safety measures, namely remediation orders against landlords requiring them to remedy 'relevant defects' that cause a 'building safety risk' and Building Liability Orders (BLOs), granted by the High Court and extending the liabilities of a company or corporate body to any of its associates (such as a parent or subsidiary) and making them jointly and severally liable. The provisions relating to BLOs came into force in June in England and Wales.

New rights for leaseholders

New rights, in force from June, for 'qualifying' leaseholders in respect of liability for historical safety defects in a building, for example, replacement of flammable cladding or adding fire safety improvements to buildings. This means for the first time, many leaseholders are protected under new laws from bearing the costs of certain remediation and related building safety work on their building, thereby putting the cost liability onto a building's developers.

New homes Ombudsman scheme

Under s136 a framework for a New Homes Ombudsman scheme is to provide a forum for owners of newly built homes to seek redress against developers and builders. 

The Act also allows social housing complainants to escalate a complaint directly to the Housing Ombudsman service once they have completed their landlord's complaints process.

Changes to Fire Safety Order

The Act will bring in several changes to the Regulatory Reform (Fire Safety) Order 2005 so that "responsible persons" (likely to be building owners or managers), will be under a duty to risk assess the structure and external walls (including windows, doors, and balconies) of buildings and entrance doors and take general fire precautions to ensure those areas are safe.

Contracts may need to be reviewed, and processes audited to ensure compliance as and when the Act is fully in force. Building owners and management companies should consider the new opportunities open to them to recover the costs of historic building defects.

Impact on project management

• Before construction starts:

Ensuring that all staff are equipped with the necessary skills, knowledge, and experience are in place so that duty holders are competent, allowing developers and contractors to execute their roles as an accountable person. This must not be an afterthought.

• During construction:

Throughout construction, technical documents, plans, drawings, and specifications are retained are made available throughout the process. In having these documents readily available and such information will ensure to mitigate any issues with safety risks.

• Completion:

The regulator could halt the progress of the project whilst it awaits the satisfaction of requirements being. Thought should be given to allowing sufficient time that mitigates any delays due to this so as to avoid any damages.

The building must also be registered before it can be occupied. Post completion, all project documents and records must be retained, and it is advised that these should be held for the length of the extended defects liability period, which could be up to 30 years.

Conclusion

The Building Safety Bill was one of the most scrutinised pieces of legislation in recent years, and the Act's creation marks a turning point following the tragedy of the Grenfell Tower. 

Putting in place strengthened regulatory regimes and the obligations placed upon persons involved with building safety will impact all levels of the industry. Although the impact of these changes remains to be seen, it can be assumed that any future impacts will be entirely positive. 

Although there are a number of new duties and liabilities for everyone involved to consider, the staged approach of introducing these obligations ensures that companies have time to prepare.

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