Are the objectives of the Hackitt report being realised?

I recently had the pleasure of participating in a presentation with both Dame Judith Hackitt and Tracy Keep, of Gallagher insurance brokers, at which we explored the current status of the new statutory and regulatory regime, commented on the progress being made against some of the key objectives identified by the report authored by Dame Judith, and identified some of the challenges and uncertainties that still remained.

In this, the first of a series of articles, I identify the primary objectives of the Hackitt Report and the Building Safety Act 2022 (“BSA 22”) and whether those objectives are being achieved. In subsequent articles, we will consider the detail of recent Regulations implementing the gateway, dutyholder and competency regimes.

Objectives of the new statutory and regulatory regime

The primary objectives have identified a number of the key objectives of the new regime. They include:

• ensuring that all high-rise residential buildings and buildings to which the legislation applies are of high quality and safe
• improving the competence of the people involved in the design, construction and refurbishment and management of buildings
• creating a system that provides greater oversight over the design and construction process by a new regulator – the Building Safety Regulator
• ensuring quality standards are met and that the quality standards and method of compliance are clear
• providing residents with information about their buildings and providing them with statutory protections and remedies.

Where are we?

Where are we against those objectives?

Even prior to Grenfell, the number of construction claims were increasing, and the PI insurance market in particular was becoming more challenging. All too often, projects were being procured in haste, with insufficient time being given by employers to designers and contractors to produce co-ordinated designs and to complete the works. Work on site was commencing before designs were complete or coordinated, giving rise to avoidable defects, claims for extensions of time and additional costs.

The construction industry, their lawyers and insurers, didn’t take the decisions necessary to address these issues.

As recognised by Dame Judith Hackitt, there has been criticism at the speed that the new regulatory regime has been implemented, resulting in uncertainty for those working in the sector, including their insurers. Nevertheless, Dame Judith was firmly of the view that the new regime should be considered as a journey and not a one-stop reform. As the purpose of the regime has been clear, there has been no excuse in delaying changes in behaviour and practice and in adopting a new collaborative culture.

On the 1 October 2023 the government brought into force three new Regulations which, together, implement a more stringent building control regime for higher risk residential buildings. These Regulations are:

• The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
• The Building Regulations etc. (Amendment) (England) Regulations 2023
• The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

We will take an in-depth look at these Regulations in subsequent articles. In short, they:

• set out the obligations and competency requirements for the dutyholders
• establish the Building Safety Regulator (“BSR”) as the only Building Control Authority for higher risk buildings (“HRBs”); and
• provide details of the building control regime for HRBs, including what information must be provided in Gateway 2 and 3 applications.

The new statutory and regulatory regime provides the whole industry with the opportunity to adopt a new culture which will not only impact the design, procurement, construction and management of HRBs, but other types of project as well.

Competency requirements

Organisations such as the BSi have undertaken a lot of work to create a suite of national standards that dutyholders should comply with, and have created training courses to assist those charged with ensuring the safety of buildings. The aim is to raise competency across the built environment sector, with a focus on Principal Designers, Principal Contractors and those responsible for the management of buildings.

Prior to the publication of the detailed dutyholder obligations, guidance was given on the required competency thresholds, required behaviours, and on how to ensure knowledge of the relevant statutory and regulatory requirements and management processes.

The Building Regulations etc. (Amendment) (England) Regulations 2023 now set out the competence requirements of dutyholders. This is likely to result in the publication of further guidance on how these should be achieved and the behaviours and practices that need to be adopted.

Quality standards – compliance with Building Regulations and gateways

One of the criticisms contained in the Hackitt report was that previous building standards were too complex, not understood and not read.

In order to achieve higher standards, there must be clarity on:

1. the standards that need to be met; and
2. the method of compliance.

Even prior to the commencement of the BSA 22, the government started the process of amending Building Regulations in an attempt to provide greater clarity on standards to be achieved. Nevertheless, the Building Regulation regime is still based upon the old regulatory framework and interrelationship between part of the Building Regulations and the Approved Documents.

Accordingly, there is still some uncertainty as to what constitutes compliance. Whilst Approved Documents are used as guidance, they are only evidence of compliance with the underlying Building Regulations, (see s. 7(1) of the Building Act 1984). Compliance with the Approved Documents does not constitute compliance.

Part 3 of the BSA 22 sets up a system of gateways to ensure that building risks are considered at each stage of the design and construction of higher risk buildings. Dutyholders can’t pass between gateways without the approval of the BSR.

The gateway regime, which finally came in to force on 1 October 2023, is one method of seeking to improve quality standards by providing regulatory oversight to the planning, design and construction process. All too often, prior to Grenfell and after, projects progressed prematurely without all of the necessary designers contributing to the design solution, and prior to all of the engineering issues being resolved, only for defects to arise subsequently. The gateway regime is designed to overcome this.

Gateway One (at planning stage) has been in force since 1 August 2021. Gateway Two (before building works begin) and Gateway Three (when the building is complete) were implemented on 1 October 2023. The Regulations mentioned earlier in this article state that the BSR will be the sole Building Control Authority for HRBs, set out the procedure to obtain approval from the BSR to progress between gateways, and set out the information required to achieve approval to progress between gateways.

Dutyholder regime

The purpose of the dutyholder regime is to provide “rigorous and demanding dutyholder roles” which are clear and carry effective sanctions for poor performance.

The need for clarity on what is expected of each of the dutyholders is a key element of the reforms, and the obligations owed by each dutyholder are set out in The Building Regulations etc. (Amendment) (England) Regulations 2023.

Dutyholder obligations

With the issue of the new Regulations mentioned earlier, the government has started to provide some clarity on the nature of the dutyholders’ obligations.

Nevertheless, questions remain, including whether the new regulatory regime creates a new collaborative and transparent culture? We will discuss this in further detail is subsequent articles, but a major step forward has been taken. The new regulatory regime requires dutyholders to:

• ensure that they provide sufficient information about their work to the other dutyholders
• cooperate with other dutyholders so as to ensure that the design, if constructed in accordance the design, will achieve the relevant requirements, and
• the Principal Designer must ensure that the design is fully coordinated.

Failure by a dutyholder to comply with their obligations will expose them to criminal sanction. On top of that, DLUHC and local authorities are using the powers given to them under the BSA 22 to ensure that dutyholders comply with their obligations.

Duties of the accountable person

The Accountable Person is usually the organisation that owns or manages a HRB and is a particularly important role. They will be responsible for:

• taking all reasonable steps to prevent a building safety risk, i.e. a fire safety risk or structural failure
• reducing the seriousness of an incident should one occur
• preparing a case safety report – this must identify fire and structural safety risks and how risks are to be managed.

The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 detail procedures which the BSR, Principal Accountable Person, Accountable Persons and residents must follow during the occupation phase of HRBs. Some key obligations include:

• the need to obtain a Building Certificate prior to occupation
• registration of higher risk buildings
• duty to display certain information
• duty to produce an assessment of building safety risks
• duty to prevent building safety risks
• duty to provide maintain prescribed information and provide this to residents.

Challenges and uncertainties

The Hackitt report talked about dutyholders having an obligation to “ensure” that dutyholders complied with the relevant Building Regulations. The courts, in cases such as and more recently in MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd [2017] UKSC 59, Martlett Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC) and LDC (Portfolio One) Ltd v George Downing Construction Ltd [2022] EWHC (TCC), have showed a willingness to interpret contracts in a way that has imposed strict obligations on the part of designers to comply with certain standards - such as Building Regulations - which has had the potential to affect the availability of professional indemnity insurance. The latest Regulations contain obligations that are drafted as a need to take reasonable steps. Others are formulated as absolute requirements, (i.e. a duty to ensure that that work is undertaken in accordance with requirements). In that sense, they mirror the nature of the duties set out in many of the standard forms of contract.

There is also an obligation on dutyholders to consider whether other disciplines affect the performance of their obligations. In that way, the Regulations are attempting to create a culture of collaboration.
There are still many obstacles. These include:

• the new statutory and regulatory environment is extremely complicated
• the wording of standard forms will need to reconsidered in order to reflect the changes that have been implemented
• will standard forms of contract/appointments expressly adopt these obligations to supplement liability under statute?
• how will the insurance industry respond to these reforms? Currently, policy wordings with requirements not to make admissions of liability could be considered inconsistent with the new culture of collaboration and transparency that is being promoted by these reforms
• some stakeholders in the construction industry have been slow to embrace the change of culture required. This will need to change, and the insurers will need to satisfy themselves of this.

We will consider some of these challenges in subsequent articles. But what is certain, however, is that the conclusions in the Hackitt Report and the government’s response provides the industry and its insurers with a real opportunity to improve not merely building safety, but the method of how projects are procured, designed, constructed and managed. All stakeholders must embrace this change.

 

The accountable person and the golden thread - the sovereigns of building safety reform

This insight is authored by Principal Associate, Natalie Keyes.

The accountable person is a lynchpin in building safety management. So let’s reflect, first and foremost, on the purpose of the role and then consider key headlines as to what the accountable person is responsible for, and when. Even if not the accountable person, it is important for all involved in building construction and management to know who to contact, and in what circumstances, in relation to building safety. If the legal obligations of the accountable person are not being fulfilled, the Building Safety Regulator (BSR) may issue compliance notices, prosecute, or apply special measures to take over the accountable person role.

Why: the accountable person role ensures one point of contact, responsible for assessing and managing the fire and structural risks of a high-rise residential building, i.e. at least seven floors or 18 metres in height and containing at least two residential units, or hospitals or care homes, (together commonly referred to as higher-risk buildings). If the accountable person is an organisation or there are multiple accountable persons for one building, an individual must be appointed as the principal accountable person.

Who: the accountable person will usually be the organisation or individual who owns the building or has a legal obligation to repair the common parts, (i.e. the structure, exterior, corridors, staircases etc). Others can be employed to carry out the duties but the accountable person remains legally responsible for ensuring their obligations are met. If there is any dispute as to who the accountable person is, this question can be referred to Tribunal for a decision.

What: the accountable person must do:

• register the building with the BSR and provide updates and reports if there is any change to the building safety risks or the Safety Case. Reporting is mandatory for any building safety occurrence in relation to a higher risk building that has resulted in death, serious injury, or permanent disabling of a significant number of people, (or is likely to); this includes defective building work, fire safety issues, or use of non-compliant products
• identify any building safety risks and ensure measures to prevent, or minimise the impact of potential, building safety risks
• maintain the Building Safety Case. Essentially, this should record key details about the building and assessed risks, e.g. plans, key construction details, details of relevant design standards and building control certificates, (for original and any refurbishment work), details of surveys or inspection programmes. Maintaining this Case includes preparing safety case reports and tracking any action points until resolution. The Building Safety Case is the cumulation of the GOLDEN THREAD – the key information to be passed to, and kept by, all owners of high-rise buildings to ensure effective safety management through the building life cycle. Information must be easily accessible and digitalised
• prepare, distribute, manage and review the Resident Engagement Strategy.

When:

• all existing, occupied high-rise residential buildings should have been registered with the BSR by 1 October 2023 – otherwise, a criminal offence has been committed, for which the penalty is a fine and/or imprisonment. It is estimated around 12,000 buildings in England should be registered. New high-rise buildings must be registered before occupation
• the Building Safety Case requires review at regular intervals and if the current assessment becomes invalid
• the BSR should be informed within 14 days of any changes to the building summary or accountable person, and within 28 days of any changes to the building structure or fire safety information
• the Resident Engagement Strategy should be in place at occupation and requires review every two years, after every consultation, after any mandatory occurrence and after completion of any significant material alterations
• Golden thread information should be passed to any new accountable person and the BSR “in a timely manner”. There is some debate as to what this is likely to mean and we may see this clarified as the BSR begins to process registrations.

 

Three strikes? : the new remedies introduced by the Building Safety Act 2022: remediation, product and building liability orders

This insight is authored by Principal Associate, Natalie Keyes.

Reflecting on a year of progress and challenges under the Building Safety Act 2022

The Building Safety Act 2022, (setting aside for one moment subordinate legislation), introduces three brand new causes of action worth consideration.

Remediation Orders and Remediation Contribution Orders (ss.123-124 BSA 2022)

A Remediation Order requires remedy, by the landlord, (which may include a party to the lease other than the landlord or tenant), of any building safety risk within a specified time. Further to this, a Remediation Contribution Order may direct that a specified company make payments to meet the costs of remedying any building safety risk. At present these orders are limited to buildings over five storeys or 11 metres high.

An application for an order can be made by any interested person, including the Building Safety Regulator, a local authority, a fire and rescue authority, or any person with legal or equitable interest in the building or part of it.

The First Tier Tribunal has already issued a number of Remediation Orders since the summer of 2023. Weightmans have previously commented on the first remediation order.

The Tribunal’s comments so far illustrate:

• the process is intended to be a straightforward route of remedy for leaseholders
• there is no pre-determined burden of proof and the Tribunal will be led by evidence
• when considering whether a relevant defect is a building safety risk, the Building Regulations at the time of the hearing will be considered rather than those at the time of construction or completion. This differs from the usual contractual position
• the Tribunal does not consider it has costs jurisdiction unless either party has acted unreasonably.

Liability relating to construction and cladding products (ss.148 and the 149 BSA 2022)

Claims can now be brought against any person who:

1. Fails to comply with a construction product requirement;
2. Markets or supplies a construction product makes a misleading statement in relation to it; or
3. Manufactures a construction product that is inherently defective; which, when installed or attached, causes any dwelling or building to be unfit for habitation.

Unlike Remediation Orders, this cause of action can apply to any dwelling or building. A person found guilty is liable to pay damages to a person with a relevant interest in the relevant building. Crucially, any term of agreement which attempts to exclude this liability is void; parties cannot contract-out of these provisions. The period to bring claims for new causes of action is 15 years from completion. In relation to cladding defects, s.149 will apply for 30 years retrospectively, (in line with amendments to the Defective Premises Act 1972).

Building Liability Orders (s.130 BSA 2022)

A Building Liability Order (BLO) can be granted by the High Court if considered just and equitable. A BLO can be applied to a body corporate only but permits action against “associate” companies in relation to claims resulting from a building safety risk. We will consider the issue of BLOs next so stay tuned.

Four thoughts on Building Liability Orders (‘BLOs’)

This insight is authored by Principal Associate, Luiza Balan.

The Building Safety Act 2022 (‘the Act’) marked the beginning of a new era in ensuring the safety of high-rise residential buildings in the UK.

One crucial aspect of this legislation is the introduction of Building Liability Orders (‘BLOs’) under s.130 of the Act, providing a mechanism designed to prevent certain developers from escaping liability for building safety defects by carrying out projects through Special Purpose Vehicles (‘SPVs’) with limited or no assets. As stakeholders grapple with the implications of this new enforcement tool since it came into force on 28 June 2022, four key issues are worth noting:

1. Accountability and responsibility beyond the ‘corporate veil’

BLOs place a significant emphasis on the responsibility of developers to ensure the safety of their building projects, aiming to encourage a culture of accountability and responsibility. Developers often set up SPVs to carry out building projects which are dissolved on completion. BLOs aim to extend responsibility and accountability beyond the original developer and onto its associated company/companies, making them jointly and severally liable for defects posing a building safety risk to the occupants.

2. What is an Associate?

Once issued, a BLO provides that the ‘relevant liability’ of one body corporate is also the liability of another ‘specified’ body corporate or is a joint and several liability of two or more ‘specified’ bodies corporate. A body corporate is ‘specified’ if it is associated with the original body corporate at any time from when the building works started until the date the BLO is made. It is irrelevant if the original body corporate is now dissolved – a BLO can still be made against its associates.

3. Relevant liability

A BLO may be made in relation to any ‘relevant liability’, regardless of whether it arose before or after s.130 came into force, as long as that liability was incurred:

• under the Defective Premises Act 1972
• under s.38 of the Building Act 1984 (not yet in force)
• as a result of a ‘building safety risk’ defined as a ‘risk to the safety of people in or about the building arising from the spread of fire or structural failure’.

4. Just and equitable

A BLO will only be issued if the court is persuaded if would be ‘just and equitable’ to do so. It is unclear in what circumstances the court would consider this threshold has been met and no guidance has yet been issued on this to date.

Debates in the House of Lords have suggested that factor which may be taken into account include:

• the nature of the defects
• the extent of the damages sought
• whether a fair trial can take place
• whether the claimants have alternative methods of recourse, (e.g. insurance), and
• the solvency of the associated companies.

Overall, it remains unclear how the High Court will apply the ‘just and equitable’ test and it is hoped that when the first BLO is granted we will be provided with further clarity as to when a BLO will be granted and against whom.

 

5 years of the Grenfell Tower Inquiry

This insight is authored by Partner, Tom Thurlow.

Whilst a number of early procedural hearings were heard in late 2017, the public inquiry set up in the wake of the Grenfell Tower fire commenced in earnest - with commemoration hearings - in May 2018, just shy of a year from the devastating fire at Grenfell Tower.

In its latest update, the Inquiry advised that whilst the final report will hopefully be complete before the 7th anniversary of the fire in June 2024, they are not there yet. So what then has been happening with the Inquiry in the last five years?

• 2018 -2019 – under great pressure to make progress, and with the Metropolitan Police’s investigation having been in effect paused whilst the Inquiry concluded its work - Phase 1 kicked off at break neck pace, occasionally in a somewhat sporadic manner.
• 2019 – 2020 – the Phase 1 report was released in October 2019. Whilst it was in large parts narrative in form, it importantly did include the chairmans’ “conclusions about the origin and development of the fire and [his] analysis of the response of the LFB and the other emergency services which attended the incident.”
• 2020 – 2021 - Phase 2 hearings began again in earnest in September 2020 and continued through much of 2021, albeit, due to Covid-19, they took rather longer and regularly changed in form including remote hearings, limited attendance hearings and various other hybrid options.
• 2021 – 2022 – the majority of the hearings ended in July 2022 with overarching closings in November 2022: the 86th week of hearings. By this point the Inquiry had 638 core participants and had disclosed c. 320,000 documents (of the many millions it had received) making it one of the largest inquiries to-date.
• 2022 – 2023 – the Inquiry team are substantially under way with drafting the report and have issued a very large number of rule 13 (advance warning) notices to those who are to be criticised. The latest indications are that – as with almost every stage of the Inquiry – this process is taking longer than expected.

It is of course right that the Inquiry takes the time it needs, and to those of us intimately involved in the process, it was clear early on that it would not be over quickly. It was obvious very early on that the issues the Inquiry was uncovering went well beyond Grenfell or those involved. The Inquiry has uncovered systemic failings and will – we have no doubt – ultimately make recommendations which will have a deep and lasting impact on the safety of the built environment in this country and beyond.

The Inquiry has righty not taken place in a vacuum. Alongside the work of Judith Hackitt, countless professional bodies and others have progressed building safety in the meantime, culminating – at least in theory – with the coming into force of the Building Safety Act 2022. Now substantially through its implementation phase, and with yet more to be progressed before the Inquiry ultimately reports, 2024 looks set to bring some interesting times as we see how these two processes dovetail, or not, as the case may be.

 

6-year limitation periods, no longer - extended limitation periods under the Building Safety Act 2022

This insight is authored by Partner, Daniel Barchet.

Background

Under English law, legal claims – for a breach of contract, a breach of a duty of care, or otherwise – cannot be brought indefinitely. Statutory limitation periods for claims apply under the Limitation Act 1980. Under this Act, most claims can only be brought in the courts for up to six years from the date the right to claim arose or up to 12 years for breaches of contractual provisions contained in a deed. Beyond the applicable ‘limitation date’, a claimant is out of luck. These limitation periods provide certainty for contract parties that they will not be at risk on a perpetual ongoing basis – there is a longstop. This is also practical from an evidential perspective, when after considerable time evidence to prove or defend a claim is likely to be lacking or non-existent.

For businesses in the construction sector, the Building Safety Act 2022 has made some seismic changes to the traditional limitation periods. Changes effective from 28 June 2022 mean that some claims can now be brought up to 15 years (looking forward) and up to even 30 years (looking historically) after the relevant breach arose.

This article summarises these important changes, which Parliament enacted in response to the fallout within the construction industry resulting from deficiencies highlighted by the Grenfell Tower fire of 2017.

Changes to the Defective Premises Act 1972

The Building Safety Act extended the scope of the Defective Premises Act 1972, as well as extending the limitation periods applicable to claims under it.

Before the Building Safety Act, (and 28 June 2022), section 1 of the Defective Premises Act imposed a relatively narrow duty of care on parties involved in the “provision of” a dwelling to ensure that it is “fit for habitation” and constructed of “proper materials”. In other words, the duty only applied to the original construction of the dwelling but not any refurbishment or modification.

Since 28 June 2022, the scope of the Defective Premises Act has been extended so the duty under section 1 covers all work carried out on any part of a dwelling (or a building containing dwellings), with the relevant duty remaining that “proper materials” are used and that “the dwelling is fit for habitation when the work is completed”.

In terms of the limitation period, prior to the Building Safety Act, the section 1 duty applied for six years after completion of the dwelling but the Building Safety Act has altered the limitation position so that:

• for completion of the provision of dwellings before 28 June 2022, (under the historic Defective Premises Act), the limitation period is 30 years from the date of completion of the dwelling
• for dwelling works completed after 28 June 2022, (with the expanded duty), the limitation period is 15 years from completion of the works to the dwelling.

Changes to section 38 of the Building Act 1984

Section 38 of the Building Act 1984 is intended to impose a strict liability, (i.e. liability irrespective of fault or negligence), on parties who fail to comply with building regulations and cause damage. Even though it is almost 40 years old, this section is still not in force! The Building Safety Act has changed the limitation period for this section from 6 to 15 years but, until the section is brought into force – no date has been announced so far – this is something that should stay on the construction sector’s radar as a possible future source of liability.

A new liability for breaches of the Construction Products Regulations

Finally, where a manufacturer of construction products has breached the Construction Products Regulations and this has caused a building or dwelling to become unfit for habitation, the Building Safety Act has introduced a liability to pay damages for “personal injury, damage to property or economic loss”.

Claims for this new, wide-ranging liability have a limitation period of 15 years or, for existing claims relating to defective cladding, 30 years.

What is the effect of these changes?

Such extensive changes to limitation periods have historically been unheard of. This, combined with the government’s rushed approach to drafting (for commendable reasons, due to the desire to implement improvements to health and safety as quickly as possible), and subsequently bringing into force the various parts of the Building Safety Act, there is limited guidance on how these extended limitation periods should operate in practice, the impact they might have on the construction sector in areas such as pricing and risk allocation between parties, and the impact on connected sectors such as insurance, (along with the plan to bring in force a 15-year statutory new build home warranty under the Building Safety Act).

The best guidance that can currently be offered is, when entering into construction contracts such as a contract with a main contractor, an appointment of a consultant or a collateral warranty, to seek advice from your legal advisors on whether the contract adequately addresses and seeks to protect your position in respect of these changes.

As specialist construction lawyers at Weightmans with an extensive network of contacts, we would be happy to assist you with any questions you may have regarding the issues raised in this article.

Higher-Risk Buildings – 7 or more storeys/11m 18 metres in height

This insight is authored by Trainee Solicitor, Molly Tomlison.

Higher-risk buildings are defined by their height and use. The Building Safety Act 2022 (BSA 2022) contains an alternative definition of what constitutes a “higher-risk building” for the design and construction of a building and for its occupation. These definitions are further supplemented by additional legislation.

What is a higher-risk building in England during design and construction?

Higher-risk buildings during design and construction are defined by s.31 of the BSA 2022, and is further refined by regulations 2 and 7 of the HRB Regulations 2023. The government has published additional guidance which further sets out the legal criteria to determine whether a proposed new building can be considered as “higher-risk”.

In England, a higher-risk building during design and construction is:

"...a building in England that—

1. is at least 18 metres in height or has at least 7 storeys, and
2. is of a description specified in regulations made by the Secretary of State." (Section 31)

The description specified is that the building –

• Contains at least two residential units;
• is a care home;
• is a hospital.

Expressly excluded from this definition are –

• Secure residential institutions.
• Hotels.
• Military barracks and living accommodation for military personnel.

It is important to note that –

• The BSA 2022 inserts this definition into a new section 120D of the BA 1984.
• This definition applies to England only. The BSA 2022 inserts section 1201 of the BA 1984 allowing Welsh Ministers to create their own definition.

What is a higher-risk building in England for existing buildings?

A stricter building regime, overseen by the Building Safety Regulator, applies to work carried out on existing higher-risk buildings, encompassing both existing buildings that are caused to become higher-risk buildings and those that undergo a material change of use to become a higher-risk building. This also includes work on existing hospitals and care homes, whether these buildings are existing higher-risk buildings or will become higher-risk buildings once the work is complete.

What is a Higher Risk Building in England during occupation?

Higher risk buildings during occupation are defined by s.65 of the BSA 2022 and this is further refined by regulation 8 of the HRB Regulations 2023. The government has published further guidance setting out the criteria that determines whether the building is higher-risk for the purposes of the in-occupation phase of the new building safety regime.

In England, a higher-risk building during occupation is –

"...a building in England that—

1. is at least 18 metres in height or has at least 7 storeys, and
2. contains at least 2 residential units." (Section 65(1) BSA 2022)

Expressly excluded from this definition are –

• Care homes
• Hospitals.
• Secure residential institutions.
• Hotels.
• Military barracks and living accommodation for military personnel.

Why is it important to know whether a building is a Higher Risk Building?

There are additional obligations for new High-Risk Buildings, namely, the BSA 2022 places legal responsibilities on those who commission building work, participate in the design and construction process and those responsible for managing structural and fire safety in higher-risk buildings when they are occupied. These people are called “dutyholders” during design and construction, and “accountable persons” when the building is occupied. Our article on dutyholders discusses this in further detail.

Leaseholder protection

This insight is authored by Associate, Claire Whiting.

Considering the impact of schedule 8 of the Building Safety Act 2022

Schedule 8 of The Building Safety Act 2022 (‘BSA’) introduced a number of leaseholder protections in relation to cladding system remediation costs and costs relating to the remediation of ‘relevant defects.’ Such protections apply in respect of ‘qualifying leases’ and others in ‘relevant buildings’.

1. What is a Qualifying Lease?

A ‘qualifying lease’ is one which meets all of the following criteria:

• It is a long lease (i.e. more than 21 years) of a single dwelling within a building of 11 metres or at least 5 storeys)
• The tenant is responsible for a service charge
• The lease was granted before the 14 February 2022; and
• On 14 February 2022:
  • the dwelling was the tenant’s main or only home; and
  • the tenant did not own more than 3 dwellings in the UK.

What is a Relevant Building?

A “relevant building” is one that fulfils the following conditions:

• It is at least 11 metres tall or has at least 5 storeys
• Contains at least 2 dwellings; and
• Is not a leaseholder owned building.

What is a Relevant Defect?

A “relevant defect” is one that:

• Puts people’s safety at risk from the spread of fire, or structural collapse;
• Has arisen from work done to a building, including the use of inappropriate or defective products, during its construction, or any later works (such as refurbishment or remediation);
• Has been created in the 30 years prior to the leaseholder protections coming into force (meaning the defect had to be created from 28 June 1992 to 27 June 2022), and
  Relates to at least one of the following types of works:
  
  • The initial construction of the building
  • The conversion of a non-residential building into a residential building, or
  • Any other works undertaken or commissioned by or on behalf of the building owner or management company.

Implications

The BSA imposes a legal obligation upon landlords to undertake necessary works to remediate cladding defects at their own costs.

The freeholder will remain liable to repair and maintain the defective element under the lease.

The BSA prevents a landlord from claiming the cost of defects from residents and amounts to a variation of the lease, which results in the defective elements of the building no longer falling within the definition of ‘common parts.’

Save for cladding remediation works, the BSA enables a landlord to seek costs from a resident for necessary works where there is a ‘building safety risk’ identified (defined as the ‘spread of fire or the collapse of the building or any part of it’).

In summary, landlords face paying the entire costs associated with remediating cladding defects and / or the partial costs associated with remediating non-cladding defects, subject to raising a limited-service charge against residents for non-cladding defects.

It is not possible to contract out of the provisions in Schedule 8 to the BSA 2022. Any covenant or agreement that purports to exclude or limit any provision in Schedule 8 to the BSA 2022 will be void.

The new framework for construction products under schedule 11 of the Building Safety Act

This insight is authored by Solicitor, James Garner.

Introduction

Schedule 11 of the Building Safety Act 2022 provided a new statutory framework for construction products.
Although no regulations under Schedule 11 have yet been introduced, the content of the Act makes it clear that regulations will likely focus on the marketing and supply of construction products, introducing a new regulator who will have powers to act on non-compliance, and introducing criminal offences for persons who fail to meet the requirements.

What are construction products?

In the Act, “construction product” is not a specifically defined term, it will be defined in regulations made under Schedule 11. The term is, however, defined in previous regulations that the Act otherwise refers to, giving an indication of what the adopted definition may look like.

The Construction Products Regulations 1991 defines a “construction product” as “any product which is produced for incorporation in a permanent manner in works”. The term “works” is defined as “construction works, including both buildings and civil engineering works”.

The EU Regulation No. 305/2011 (retained regulation laying down harmonised conditions for the marketing of construction products) defines a “construction product” as “any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works”

These are evidently wide definitions and if regulations under Schedule 11 follow suit, it is likely that any product used in permanent construction will be covered under the Act.

What will the regulations cover?

Schedule 11 sets out that regulations may –

1. prohibit the marketing or supply of construction products which are not safe products
2. impose other requirements for the purpose of securing that construction products which are not safe products are not marketed or supplied;
3. impose requirements in relation to the marketing or supply of construction products which are safe products.

A “safe product” is a product which “does not present any risk to the health and safety of persons” or where there is such as risk, the risk is “as low as it can be compatibly with using the product”.

Regulations will apply more stringent standards to “safety critical products” which are those that, in the Secretary of State’s view, where failure of the product “would risk causing death or serious injury to any person”.

It is also worth noting that the Act introduced statutory liability relating to construction products and cladding products under Sections 148 and 149.

The Regulator

Schedule 11 states that regulations may confer powers to a “relevant authority” (the National Regulator for Construction Products) to act where there is a failure to comply in relation to “safety critical products”. The powers include to:

1. require a person to warn others of the risks attaching to a product;
2. require the marking of a product in respect of the risks attaching to it;
3. suspend for a specified period or prohibit the marketing or supply of a product (or suspend or prohibit the marketing and supply of the product without the consent of a specified person);
4. require the withdrawal of a product from the market;
5. require the recall of a product from persons to whom it has been supplied.

There is also scope in the Act for the Regulator to impose charges on persons carrying out activities in relation to construction products. Construction products regulations under Schedule 11 may also create criminal offences, punishable with a fine and/or a term of imprisonment.

Conclusion

While the Act itself provides a statutory framework and a strong indication of what the law relating to construction products will be, it is clear that the introduction of regulations under Schedule 11 will have a significant impact on many in the construction industry. Those who are involved in construction will need to continue to assess the risk of the products that they use and ensure that close attention is paid when the regulations are introduced.