Building Safety Act

05 May 2022

The Building Safety Bill, which began its passage through Parliament in July 2021, became an Act of Parliament on 28 April, signifying an important milestone in overhauling building safety regulation since the fire at Grenfell Tower. The Act will include some changes that apply to all new building work, which we explain below. 

We have been following the Bill throughout this process and updating our members on key developments.

Here, we share a brief summary of the new Act, and clarify some of the main points we’ve been highlighting to our members.

About the Act 

The new Building Safety Act will bring in a number of measures intended to make buildings and residents safer. They include the formation of a new Building Safety Regulator, whose role is to enforce a more stringent regulatory regime for buildings of 18m and over, as well as overseeing safety and standards in buildings of all heights.

The Act also contains measures intended to ensure that most leaseholders do not have to cover remediation costs, by setting out routes of redress that instead would see contractors and developers pay for building safety work.

There will also be some changes to fire safety laws that will place additional requirements on Responsible Persons, as well as introducing a New Homes Ombudsman scheme to help deal with complaints from home buyers against developers.

Ensuring those responsible pay to fix building safety issues

Earlier in the year, Michael Gove described a ‘reset’ of government policy on the question of who should pay to remediate defective buildings, tabling amendments to the Bill to bring these changes forward. These changes broadly limited the extent to which costs for remedial works could be passed to leaseholders.

In one such clause, there is a broad definition of ‘developer’ used, which we’ve been raising concerns about on behalf of our members. We were concerned that this could be used by contractors to argue that a commissioning organisation should be responsible for covering building safety costs. The government has clarified that this is not its intention, and that the definition of developer used in the Act should not prevent a commissioning organisation from pursuing a responsible contract to cover costs. We have also received a view from a QC setting out that this is the case.

As part of his reset, Michael Gove has negotiated with house builders, who are now pledging to remediate buildings that they are responsible for – and this will include those built as part of section 106 agreements. However, we understand from conversations with civil servants that the pledges will not include buildings brought forward through design and build contracts. We will continue to make the case to the government that it should negotiate with contractors in the same way it has with developers. This could minimise the potential cost to housing associations of paying for safety work, or of pursuing claims against contractors responsible.

Extensions to the Defective Premises Act

The Building Safety Act will amend the Defective Premises Act to substantially increase the period in which building owners can bring a claim against a contractor for defective work. For work already completed, the limitation period will be extended so that parties can claim for defective works up to 30 years prior to the Act coming into force. For future work, the limitation period will be extended prospectively to 15 years. The changes will also mean that a building owner could pursue a claim against an organisation ‘associated with’ a contractor, such as a parent company. 

The Defective Premises Act will also be extended to include refurbishment and other work to existing buildings, so that contractors who undertake any work on a building will be required to ensure buildings are fit for habitation once work is completed. We are working with officials on ensuring that these measures work as effectively as possible for housing associations wishing to use them. 

Blocks below 11 metres

Stuart Andrew MP, the Housing Minister, has confirmed that blocks below 11m that have already been deemed in need of remediation will be reviewed by the government on a case-by-case basis. The government has stated that it believes that there is no systemic fire risk in buildings below 11m, and that mitigation measures are often more appropriate. We are seeking further information on how this review process will work in practice.

Changes that will impact all building work

The Act brings in changes that will apply to all building work, whether development or refurbishment, regardless of height.

The new Building Safety Regulator will have greater oversight over the safety and performance of all buildings, not just those that are defined as higher-risk in the Act.

The Act will place formal responsibilities on those involved in the design, construction and refurbishment of any buildings to ensure compliance with building regulations, and will give the regulator greater powers to prosecute for non-compliance.

The New Homes Ombudsman Scheme will also create a route for owners of new homes to raise complaints, and will investigate and impose sanctions where needed. 

We will continue to work with our members to support them with the implementation of the measures in the Act, some of which could be in place within a year to 18 months. If you have any concerns or questions about the Act, please get in touch with our building safety team.