On 28 April 2022, the Building Safety Bill received Royal Assent to become the Building Safety Act 2022.
After months of debate and amendment, the Bill completed all the parliamentary stages in both Houses and has become an Act of Parliament. Described as ‘an important milestone’, the 264 page Act aims to pave the way for major change in the way residential buildings are constructed and maintained in the UK while protecting the rights of leaseholders. It follows the 2017 Grenfell Tower disaster and the consequential independent Review of Building Regulations and Fire Safety by Dame Judith Hackitt.
The Health and Safety Executive (HSE), as the Building Safety Regulator (BSR), will build a more rigorous and robust regulatory regime for high-rise buildings in England. Peter Baker, Chief Inspector of Buildings said: “The Building Safety Act introduces tough new measures for the safety and quality of buildings which will be enforced by the new independent regulator being established in HSE.
“I call on everyone involved in the design, construction and management of buildings in England to now step up, get ready for the changes, and work together to drive the necessary culture change to protect people and deliver safe and good quality buildings”.
While many of the provisions will not come into force for some months yet – requiring secondary legislation to be published – below is a round-up of some of the key areas of the Act.
Building Safety Regulator (BSR)
The BSR (sections 2-30) will have three main functions:
Overseeing the safety and standards of all buildings.
Helping and encouraging the built environment industry and building control professionals to improve their competence.
Leading implementation of the new regulatory framework for high-rise buildings.
The BSR will independently oversee building control bodies (BCBs) and their professionals.
Chief Inspector of Buildings Peter Baker is the Chief Inspector of Buildings at the HSE and responsible for assembling and leading the BSR. He has explained that significant change in the industry will become obvious from April 2023, when buildings will need to be registered with the BSR and new building-control standards will arrive.
From October 2023, building owners will assume responsibility for fire and safety risks, with the BSR then “able to flex our muscles as a regulator in ensuring that building owners actually deliver their responsibilities”, he said. The building gateway system will follow, with the industry “on notice to produce their certificate applications and safety cases”, from around April 2024.
Which buildings will be regulated?
The BSR will regulate high-rise buildings. These are buildings with seven or more storeys or that are 18 metres or higher, and either:
have at least 2 residential units
are hospitals or care homes (during design and construction).
When it comes to enforcement (sections 22-24), the BSR will have the power to enforce compliance with building regulations and will seek to target enforcement activity at cases where action is needed. It says it will work closely with existing regulators such as local authorities and fire and rescue authorities.
The BSR will have the authority to prosecute individuals of corporate bodies (who have contravened building regulations) and other individuals/bodies who have defined roles and duties under the Act.
The BSR will also have to establish and maintain the following specific committees:
Industry Competence Committee.
Building Advisory Committee.
Construction Products Regulator
A Construction Products Regulator will also be established. This will be a national regulator, set up by the Department for Levelling Up, Housing & Communities (DLUHC), and established within the Office for Product Safety and Standards (OPSS). It will work with the BSR and Trading Standards to encourage and enforce compliance.
It will have powers to remove dangerous products from the market and take action against those who do not comply with the regulations. Where manufacturers are found to have non-compliant product on the UK market, the intention is for the regulator to have the power to recall those products, to require that they be withdrawn from the market, and to issue civil penalties, including fines. Where a criminal offence has been committed under the new construction product regulations, sanctions will include fines, imprisonment or both.
The regulator will also have the ability to conduct its own product-testing when investigating concerns.
The Act requires that all dutyholders are competent. This means that the individuals appointed to hold these regulated positions must possess the necessary knowledge, skills and experience in order to carry out their roles. Dutyholders (section 34) are those persons and organisations who commission, design and undertake building work to which building regulations apply. For example:
Part 4 (Section 72) of the Act identifies new dutyholders – ‘Accountable Persons’ (APs) – for residential high-rise buildings (HRBs). This will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies.
The AP will usually be an organisation or business but could also be an individual. For a building with just one Accountable Person, that person will automatically become the Principal Accountable Person for that building. Where there are multiple APs for a building, one person will be designated as the Principal Accountable Person (either the building owner or the person responsible as per above).
Accountable Person responsibilities include:
Registering the building and applying for a Building Assurance Certificate.
Carrying out a risk assessment of higher-risk buildings as soon as possible.
Taking all reasonable steps to prevent building safety risks materialising and reduce the severity of any incident.
Developing and maintaining a safety case and submitting a Safety Case Report to the Building Safety Regulator.
Producing a residents’ engagement strategy promoting ‘the participation of relevant persons in the making of building safety decisions’.
Providing prescribed information.
Setting up a complaints system.
Taking the lead responsibility for coordinating the golden thread of safety information for the building, keeping the golden thread updated and ensuring it is accurate and accessible.
There is a requirement under the Act for a ‘golden thread’ of information to be maintained at all times to demonstrate that a building is compliant with the appropriate building regulations, during the construction phase. This also seeks to identify, understand, manage and mitigate ongoing building safety risks throughout the building’s lifecycle.
It will be the duty of the people responsible for a building to put in place and maintain a golden thread of information.
The golden thread needs to be created before building work starts and the golden thread must be kept updated throughout the design and construction process.
Specific requirements for the golden thread will be set out in secondary legislation.
Information and documents
Three gateways are established at key stages in design and construction, introducing new requirements during construction, that will apply to higher-risk buildings:
Planning Gateway one – at the planning application stage (does not form part of the Building Safety Act).
Gateway two – before building work starts.
Gateway three – when building work is completed.
Gateways two and three will provide rigorous inspection of building regulations requirements, ensuring that building safety is considered at each stage of design and construction. These must be passed before a development can proceed.
Registration and certification
As part of the new building safety regime, a system of checks on high-rise residential buildings will be introduced. These checks will be carried out by the Building Safety Regulator.
All occupied high-rise residential buildings will need to be registered with the regulator. The regulator will publish the information from registration in a national register of high-rise residential buildings.
Those responsible for high-rise residential buildings will need to apply to the regulator for a Building Assessment Certificate (sections 76 to 82). The Building Assessment Certificate will be displayed within the building where it can be seen by residents. An application for a Building Assessment Certificate must be accompanied by supporting documentation, including a copy of the most recent safety case report for the building, information demonstrating compliance by each AP, and a copy of any residents’ engagement strategy.
The aim of the safety case regime is to ensure that those responsible for buildings (the Accountable Persons) deliver a continuous preventative and proactive approach to managing building safety risks.
All in scope high-rise residential buildings that are at least 18 metres in height or at least 7 storeys, will have to develop and maintain a safety case and submit a Safety Case Report to the Building Safety Regulator (sections 85). The Principal Accountable Person will be responsible for ensuring the Safety Case Report is complete and updated when necessary and submitted to the Building Safety Regulator for assessment.
To build a Safety Case, Accountable Persons will be required to identify and assess building safety risks and take reasonable steps to ensure those risks are reduced and controlled to a proportionate level on an ongoing basis.
Mandatory occurrence reporting
A requirement for mandatory reporting to the new Building Safety Regulator of fire and structural safety occurrences which could cause a significant risk to life safety is set out (section 87).
Information to support residents’ engagement
The Principal Accountable Person must produce a strategy that promotes the participation of residents in the decision-making process about the building safety risks in their building.
Those managing or owning higher-risk buildings will be required to put in place resident engagement strategies which will allow residents to obtain information and be consulted about matters and decisions affecting the safety of their building (section 91).
The strategy must include information about:
The information that will be provided to relevant persons about decisions relating to the management of the building.
The aspects of those decisions that relevant persons will be consulted about.
The arrangements for obtaining and taking account of the views of relevant persons.
How the appropriateness of methods for promoting participation will be measured and kept under review.
Relevant persons means residents of the higher-risk building aged 16 or over, and owners of residential units in the building.
Safety-related obligations for residents of higher-risk buildings are set out (sections 95-96), and where residents fall short of their obligations the Accountable Person can pursue compliance through the county courts.
The Building Safety Regulator must establish a committee known as the ‘Residents’ Panel’ (section 11), giving residents a voice in the work of the regulator. The Residents’ Panel may include non-resident owners as well as residents, given their direct interest.
The Principal Accountable Person will be responsible for ensuring Accountable Persons have a clear and effective building safety complaints process for residents.
Fire Safety Clause 156
Clause 156 of the Act makes amendments to the Regulatory Reform (Fire Safety) Order 2005 (FSO) that seek to strengthen fire safety requirements for non-domestic premises, which include the common parts of high-rise residential buildings subject to the new regime.
The FSO places fire safety duties on the Responsible Person (RP) who has control of these premises so that the RP (amongst other things):
Record their fire risk assessment in full.
Ensure that they do not appoint a person to assist them in making or reviewing a fire risk assessment unless the person is competent.
Record the identity of any person appointed by the RP to assist them – with making or reviewing an assessment under Article 9.
Record their fire safety arrangements.
Take reasonable steps to ascertain whether there are any other RPs that share or have duties in respect of the premises.
Inform the other RPs concerned of their name; an address in the United Kingdom at which they, or someone acting on their behalf, will accept notices and other documents; and the part of the premises for which they consider themselves to be an RP, and keep a record of that information.
When an RP (the outgoing RP) ceases to be an RP and another person becomes the RP, the outgoing RP must give the incoming RP any relevant fire safety information they hold. The RP must keep records of relevant fire safety information in order to do so. This provision contains a regulation making power enabling the Secretary of State to extend the list of relevant fire safety information that must be provided and to include details of the times when, and the form in which, all of the information must be provided.
Further amendments will be made, including an increase in the level of fines available to the courts to the maximum level (unlimited), for the offences of impersonating a fire safety inspector and non-compliance with requirements imposed by an inspector and in relation to the installation of luminous tube signs.
The Fire Safety clause is intended to:
Increase transparency of regulated activities through the recording and sharing of fire safety information, including with residents.
Encourage competence in those appointed to undertake fire risk assessments, including the fire risk assessor sector.
Proportionately align the FSO to the building safety regime.
Support greater compliance with, and effective enforcement of, FSO requirements.
The FSO applies to all non-domestic premises in England and in Wales where it is a devolved matter, including workplace buildings and the common parts of buildings containing two or more sets of domestic premises.
Building Safety Manager – removed
The establishment of a new legal role of Building Safety Manager, to provide a single point of responsibility and which was one of Dame Judith Hackitt’s key recommendations, was dropped during the passage of the Bill through Parliament. It was included in the draft Bill but was deleted on 22 March following evidence that it would mean substantial extra cost for leaseholders.
Despite the Bill now becoming law, many of the provisions will not come into force until twelve to eighteen months from the date of Royal Assent, requiring the formation of secondary legislation and to prepare the industry for the new regime. In some areas, consultation with industry will be required. In July 2021, the Government published an estimated transition plan of the main regime. This may change in the coming months but gives a general idea of the timeframes in mind.
Secondary legislation will provide much of the detail of the provisions put forward by the Building Safety Act. The DLUHC will be responsible for establishing most of the secondary legislation. The assumption is that full powers will come into force within 12-18 months of the Bill receiving Royal Assent.
From debate to change
The Building Safety Act 2022 now being enshrined in law has been described as a final “wake up and smell the coffee” moment for the building industry – described as such by Dame Judith Hackett. The focus now, she says, has shifted from debate to how change will happen, as quickly and as effectively as possible.
HSE/Gov.uk May 2022