The Building Safety Bill contains a series of reforms to building safety and is the most substantial legislative response to the Grenfell Tower fire in 2017.
The Government established the Building Safety Programme and the Independent Review of Building Regulations and Fire Safety (Hackitt Report) in response to the fire. The Building Safety Programme has meant remediation work has been required across thousands of high-rise residential buildings. The Independent Review concluded that a new system of regulation is required for the design, construction and occupation of high-rise residential buildings.
This Bill would make changes to building regulation, management and law, taking forward the Government’s plans to implement the review as well as other building-related measures.
The Bill was first published in draft in July 2020. It was subject to pre-legislative scrutiny and the Housing, Communities and Local Government Committee reported in November 2020. The Government responded to that report when it published the Bill on 5 July 2020.
A Building Safety Regulator
The Bill establishes the Building Safety Regulator within the Health and Safety Executive (HSE), which is a government agency. The Regulator will have three main functions:
- To implement a new regulatory regime for higher-risk buildings, and to be the building control authority for these buildings;
- To oversee the safety and performance of all buildings, including the performance of other building control bodies and understanding and advising on building standards and safety risks;
- To support the competence of those working in the built environment industry (anything that is built), and to manage the system of registered building inspectors.
The Bill requires the Regulator to establish three committees to support its work, including a Residents’ Panel.
Reforming building control and building regulations
The Bill proposes amendments to the Building Act 1984, that forms the current basis for building regulations and the building control process.
The Building Safety Regulator would be responsible for managing building control for higher-risk buildings. If enacted, the Bill will introduce a three stage ‘gateway’ process for the construction of higher risk buildings.
Changes to the time limits on building control approval and enforcement procedures are also proposed. The Bill also allows building regulations to set levels of competence for the building process.
The Bill would create a reformed regulatory structure for building control with new roles in the process.
High rise residential buildings during occupation
The Bill’s new regime for the management of higher-risk buildings in occupation (those over 18m or 7 storeys or more with 2 or more residential units). It creates roles for the management of occupied buildings (the Accountable Person and the Building Safety Manager). A higher-risk building that is occupied will need to have a Building Assessment Certificate from the Regulator. The Accountable Person will have an ongoing duty to manage the safety of the building and maintain a Safety Case Report.
The Bill also requires the Accountable Person to produce a Resident Engagement Strategy and for residents to be able to request specific information. The Accountable Person must put a complaints process in place, including with the potential for escalation to the Building Safety Regulator. The Bill also sets statutory duties for residents.
The Bill would implement an enforcement regime for the occupation of higher risk buildings.
The cost of the new regime for leaseholders
During scrutiny of the draft Building Safety Bill the proposed Building Safety Charge was controversial. The Committee said: “Nothing aroused nearly so much anger or upset in the evidence to our inquiry.” There were concerns it could be used to make leaseholders pay for historical remediation works.
The Government has clarified the Building Safety Charge “will only cover the ongoing costs of the new regime.” A requirement to pay the new charge will be implied into “relevant leases” of higher-risk buildings.
This clarification has been welcomed but there are ongoing concerns over the potential cost of the new regime. The estimate of £16 per month in the Bill’s Impact Assessment has been met with scepticism.
Will the Bill help with fire safety costs?
The Bill doesn’t relieve long leaseholders of a potential liability to pay for fire safety works if their lease agreements provide for recovery of these costs. Measures in the Bill are aimed at giving leaseholders in this position additional protection:
- Landlords will be required to take reasonable steps to recover costs through other avenues before passing on costs to leaseholders (clause 124). For example, through insurance claims and guarantees. If reasonable steps are exhausted, the costs may still be recoverable from leaseholders.
- The Defective Premises Act 1972 will be extended so compensation may be claimed for any work which renders a dwelling not “fit for human habitation” (clause 125). Refurbishment work is not currently covered by the 1972 Act. The new provision will not apply retrospectively.
- The period for a claim to be made under the 1972 Act and section 38 of the Building Safety Act 1984 (for breach of a duty related to building regulations) will be extended from six to fifteen years (clause 126). This raises the possibility of claims against developers for new dwellings provided since 2007 if the Bill receives Royal Assent in 2022. The fifteen-year claim period will not apply retrospectively to works not involving the provision of a dwelling, e.g. for refurbishment work.
Leaseholder groups are disappointed that the Bill does not prohibit the recovery of fire safety related costs. The extension of the 1972 Act and the limitation period changes are welcomed, but the ability of leaseholders to mount legal challenges is questioned. For example, many developers are no longer operating. Lucy Powell, the Shadow Secretary of State, has said legal protections need to ensure cladding remediation costs are not passed on “to innocent homeowners and tenants.”
The Bill as currently drafted does not make provision for the long term low-interest loan scheme announced on 10 February 2021 for blocks between 11 and 18 metres in height with combustible cladding.
The New Homes Ombudsman (NHO)
The Bill fulfils a commitment made on 1 October 2018 to create a New Homes Ombudsman to “champion homebuyers, protect their interests and hold developers to account.”
Owners of new build homes will, within the first two years of buying from a developer, be able to escalate complaints against members of the NHO scheme and have them investigated and determined by an independent individual.
The Bill also contains measures to:
- Amend the system of Construction Products Regulation.
- Amend the Regulatory Reform (Fire Safety) Order 2005.
- Amendments to the Architects Act 1997.
Where does the Bill apply?
Building regulation is generally a devolved matter. Most of the Bill applies to England only.
Changes to the building regulation system which amend the Building Act 1984 also apply to Wales and there are some measures specific to Wales at the request of the Welsh Government.
Clauses regarding the Defective Premises Act, the limitation period for causes of action and the changes to the Regulatory Reform (Fire Safety) Order 2005 apply to England and Wales.
Changes relating to construction product regulation and the Architects Act 1997 apply to the whole of the UK.