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Legal changes

As part of its response to the Grenfell Tower disaster, the Government has brought its Building Safety Bill 2021 before Parliament.

Building Safety Bill 2021 introduced to Parliament this week – a change in the regulatory landscape for those developing, designing, building and managing residential flats, hospitals and care homes over 18 metres high.

As part of its response to the Grenfell Tower disaster, the Government has brought its Building Safety Bill 2021 before Parliament. The Bill was published in draft form last year but has now been amended in various parts.

The vast bulk of the Bill remains unchanged from the 2020 draft – read Weightmans’ analysis of the bill.

However, there are some noteworthy additional changes and clarifications in the final Bill, including:

  • The time limit for residents to bring a claim in relation to substandard construction work will be extended from the usual six years up to 15 years pursuant to s1. DPA ‘72s. of the Defective Premises Act 1972.
  • In addition to residential buildings, care homes and hospitals will now also be considered higher-risk buildings if they are higher than 18 metres, and so would fall under the new regulatory regime.
  • Building owners will be legally required to explore alternative ways to meet remediation costs before passing these onto leaseholders and will have to provide evidence that this has been done.
  • There will be specific competency requirements for the positions of Principal Designer, Principal Contractor and anybody else carrying out building or design work. The drafts of these requirements are found in the Draft Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations (which accompany the Bill). The Government has also announced that it will be sponsoring the British Standards Institution to create a suite of national competence standards for higher-risk buildings and a competence framework for the key roles of Principal Designer, Principal Contractor and Building Safety Manager.
  • In addition to the “Accountable Person” included in the earlier draft, a new position of “Principal Accountable Person” will be introduced in relation to premises where there may be more than one person meeting the Accountable Person criteria. This is much closer to the “clear and identifiable dutyholder with ultimate responsibility for the fire safety of the whole building” recommended in the Hackett Review.
  • The “building safety risks” which must be addressed by dutyholders have been clarified as being risks of “fire spread” and “structural failure”.

The Government’s proposed timetable would see the majority of the changes made 12 to 18 months after the Bill receives Royal Assent, with some of the more minor changes happening earlier.

Commentary

The 2021 amendments to the Bill are significant and clearly focus on opening avenues of recourse for leaseholders affected by the building safety crisis. The insurance market will be particularly interested in the decision to extend statutory limitation for cladding claims, given the potential for the legislation to allow further claims to be brought against the insurers of developer and other construction organisations.

The draft legislation has also been designed to prevent the sort of buck passing that was common in multi-dutyholder situations under the Regulatory Reform (Fire Safety) Order 2005. The duties on all persons involved in developing, designing, building and managing high-rise buildings are now more prescriptive and more onerous – with criminal sanctions for companies and directors for non-compliance, it is important that all dutyholders understand what this new regime requires of them.

Read the Government's announcement on the Bill

Read the full text of the Building Safety Bill

The Building Safety Bill at a glance

The Building Safety Bill establishes a tighter regulatory regime for buildings above 18 metres high (referred to as “higher-risk” buildings) and includes:

  1. A new Building Safety Regulator with approval, enforcement and prosecutorial powers.
  2. Mandatory reporting of structural and fire safety occurrences.
  3. New obligations on Clients, Principal Designers and Principal Contractors, with “Gateway” points at design, construction and completion to ensure fire and structural safety is considered at every stage of a building’s development.
  4. The creation of new Accountable Person and Building Safety Manager roles and duties to ensure that fire and structural safety continues to be managed throughout a building’s lifetime.
  5. Criminal liability for both companies and their directors for breaches – with unlimited fines and imprisonment for up to two years.

For further guidance or support, contact our construction law solicitors.

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