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Building Safety Act - New Jurisdiction and Powers 06 September 2022

 

The Building Safety Act 2022 

1. The Building Safety Act (‘BSA’), as is well known now, was granted Royal Assent and passed into law at 13.38pm on 28 April 2022. The Act which was first introduced as a Bill to Parliament on 5 July 2021, is a central element of the Government’s response to the Grenfell disaster of 14 June 2017. It is divided into 5 material parts and contains (as section 1(1) announces) ‘provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings.’
2. The scope of the BSA and its main provisions have already been the subject of extensive coverage and comment by us (the authors) and others, and therefore in this article we have endeavoured instead to provide something of a practitioners’ guide to the new jurisdictions established under the Act, so that all those practising in this field will know what new applications are available to them and their clients.
3. Accordingly, we set out below each of the new jurisdictions and powers, firstly of the First-tier Tribunal, then of the Civil Courts (County Court and High Court including the Companies Court), as well as then identifying the multiple new criminal offences created by the BSA.

The First-tier Tribunal & Upper Tribunal

Part 2

4. Part 2 of the BSA 2022, as you will be aware, establishes the new regulator, ‘the Building Safety Regulator’ (in fact the existing Health and Safety Executive charged with dedicated new duties and functions) for securing the safety of people in or about buildings in relation to risks arising from buildings, and improving the standard of buildings. At the same time Part 2 includes a right of appeal against certain decisions of the regulator.

5. Thus, in the exercise of its many duties and functions, the new BSR will necessarily take a variety of different decisions. In so far as any of those decisions are of a kind ‘prescribed’ under section 25(1), section 26 of the BSA provides the right of appeal from the decision (subject to prior review by the regulator itself under section 25).

6. As to the decisions that may be prescribed, section 29(9) provides that any decisions of the regulator may be prescribed under, or under any instrument made under, the BSA or the Building Act 1984, except a decision on an appeal to the regulator, or a decision to give a compliance notice (under section 99), or various specified sections of the Building Act 1984 dealing with contraventions of building regulations, disciplinary orders against registered building inspectors or approvers, and contravention of operational standards rules.

7. However, the exact destination of any appeal from a prescribed decision of the BSR is not entirely clear. Section 26 itself does not make any express mention of the destination. It seems likely though (hence reference to section 26 here) that consistent with most instances where a decision can be appealed (for example, under new Schedule 6 to the Building Act 1984 (see section 56 of the BSA)), the right of appeal contained in section 26 of Part 2 against any decision of the BSR is intended to be a right of appeal to the FtT.

Part 3

8. Under Part 3, amongst the amendments to the Building Act 1984 and the new paragraphs inserted into Schedule 1 thereof, provision is made (at paragraph 1I) for Building Regulations to be made for and in connection with appeals against decisions made under, or under an instrument made under, Part 1, 2 or 2A of the Building Act 1984.  Further, those regulations may confer a right to appeal to the BSR or the FtT, and in the case of an appeal to the regulator, a right of appeal (i.e. a second appeal) to the tribunal. It is expected, therefore, that new Building Regulations will be brought forward that give effect to these provisions and rights of appeal.

9. Also under Part 3, but again to be inserted in the Building Act 1984, are new appellate jurisdictions:

• For the FtT to hear appeals against prescribed decisions of the Secretary of State in relation to HRB’s (section 30A BA 1984),
• For appeals to the “appropriate court or tribunal” compliance notices and stop notices under the building regulations (section 39A of the BA 1984),
• For appeals to the “appropriate court or tribunal” in relation to sanctions that the BSR or its delegate regulatory authority may pursue against a (private sector) registered building control approver or failing local authority, as appropriate, to ensure compliance with the proposed new operational standards rules which will govern the performance of their respective building control functions. These are decisions by the regulatory authority on applications to be registered as a building inspector (section 58D) or approver (section 58P), disciplinary orders made against building inspectors under section 58I and interim suspension orders under 58J of the Building Act 1984 or similar orders against building control approvers under sections 58U and 58V,improvement notices (section 58Z4) and serious contravention notices (section 58Z5) given to approvers or inspectors, and decisions to cancel an approvers’ registration (section 58Z6) or to recommend the transfer of building control functions from the local authority to the Secretary of State or another local authority (section 58Z7).

10. Again, under the Building Act 1984 as amended by the BSA (section 46), an appeal may be brought against a cancellation notice, where a local authority cancels an initial notice in whole or in part in respect of any works (see new section (2A) of section 55 of the Building Act 1984) on the basis that some or all of the work has become higher-risk building work. Such an appeal is to be made to the “appropriate court or tribunal”. Pursuant to section 105C, regulations may be made conferring a right of appeal to the tribunal in relation to the determination of disputes relating to any levy on certain applications for building control approval etc.

11. Section 56 and Schedule 6 of the BSA, however, make perhaps the most sweeping changes, to extensive to detail here. But suffice to say, generally, it effectively transfers the very extensive existing jurisdictions and powers of the Magistrates court in England under the Building Act 1984, to ‘the appropriate court or tribunal’.

Part 4

1. Accountable Persons

12. Part 4 is replete with new jurisdictions and powers. Thus, beginning with section 75, the FtT is given a new jurisdiction, to determine who is to be the ‘accountable person’ or ‘principal accountable person’ for any part of a higher-risk building (HRB).

13. An accountable person (see section 72) is any person who either: (a) holds a legal estate in possession in the common parts of an HRB, unless the repairing obligation in relation to all those common parts rests with another person, e.g, a management company, or an RTM (section 72(2)), or a superior landlord (section 72(3) and (4)) in which latter case the superior landlord is treated as in possession; or, (b) does not hold a legal estate in any part of the building but is under a relevant repairing obligation in relation to any of the common parts.

14. Whilst, the principal accountable person for an HRB is the accountable person if there is only one, or where there is more than one, the person who holds a legal estate in possession in the relevant parts of the structure and exterior or has a relevant repairing obligation in those parts.

15. However, should there be an issue about who is an accountable person or the principal accountable person and in relation to which part of the HRB, section 75 provides that an interested person (the BSR or any person with an interest in the common parts or a relevant repairing obligation as defined under section 72) may apply to the FtT for a determination of any of the following (a) the person or persons who are the accountable persons for the building (b) the person who is the principal accountable person for the building (c) the part of the building for which any accountable person for the building is responsible.

16. Further, where there is more than one candidate for the principal accountable person, in accordance with section 75(2) the tribunal is to determine the matter simply on the basis that it is ‘such one of the accountable persons as the tribunal considers appropriate’. No more detailed criteria are specified for the purposes of making this qualitative judgement, but presumably the parties’ respective interests in the relevant part of the building, competence, commitment and connection with the residents will be relevant.

2. Compliance Notices

17. Pursuant to section 103, a person to whom a compliance notice has been given may appeal to the FtT. A compliance notice may be given by the BSR to an accountable person for an HRB (see section 99) who appears to the regulator to have contravened, be contravening or be likely to contravene a relevant requirement (i.e. a requirement imposed on an accountable person under Part 4, except one prescribed (excepted) for the purposes of section 99). There are two kinds, an ‘urgent action notice’ where the contravention has placed or will place people in or about the building in imminent danger, and other, effectively, non-urgent notices.

18. Both kinds of notice can be appealed on the grounds that the person has not contravened, is not contravening, or is not likely to contravene, the relevant requirement and/or that it is unreasonable to require the person to do the thing specified to be done in the notice. However, the immediate effect of an appeal differs. In relation to any non-urgent notice, the appeal will act as a stay, with the notice of no effect pending the final determination or withdrawal of the appeal. Whilst, in relation to an ‘urgent action notice’, the appellant will need to apply to the FtT for a direction that the notice is of no effect pending determination or withdrawal (see section 103).

19. The FtT also has a jurisdiction to grant, on an application by the person to whom a compliance notice has been given, extensions of time for the doing of any thing specified to be done in the notice (see section 103(5)).

3. Decisions of the Regulator

20. Further, by virtue of sections 104 and 105, supplemented by section 106, the FtT is empowered to hear appeals against specified decisions of the BSR under Part 4; that is any decision refusing to register or to remove a building from the register under section 78, any refusal of a building assessment certificate under section 81 or any direction under section 83 to carry out a further assessment, and any prescribed decision of the regulator under regulations under Part 4.

Part 5

21. Under Part 5 the FtT is given further significant new powers to make orders relating to building safety works and the associated costs.

1. Remediation Orders

22. Firstly, there is the Remediation Order under section 123. This is a new regulatory order that may be made by the FtT on the application of an interested party (the BSR, a local authority, the fire authority, any owner etc), requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time. The decision of the FtT or Upper Tribunal made in connection with section 123 (other than one ordering the payment of a sum) being enforceable with the permission of the county court in the same way as an order of that court (see section 123(7)).

23. Further, pursuant to section 123, new regulations have now been made, namely SI 2022 No.859 ‘The Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022 (‘the 859 Regulations’) that came into force on 21 July 2022, which include a number of further FtT jurisdictions.

24. Under the 859 Regulations, regulations 3, 4 and 5 establish a regime by which a landlord (L) who has paid or is liable to pay the cost of a relevant measure can recover that cost or a contribution to it from other landlords of the same building where the amount is not recoverable as a service charge from the tenants of qualifying leases by virtue of Schedule 8 of the BSA 2022. In this regard, where a notice is served on another landlord to contribute to a share of any such irrecoverable amount under any of these regulations, the notice may be appealed to the FtT within 30 days of notification on specific grounds, variously that the amount claimed does not represent the cost of the relevant measure, that the recipient is not eligible to contribute or the share claimed is incorrect.

2. Remediation Contribution Orders

25. Another new form of order that may made by the FtT on the application of an interested party (the BSR, a local authority, the fire authority, any owner etc), is a Remediation Contribution Order (under section 124) requiring payment of a contribution towards the costs of remedying relevant defects. The order can be made against the landlord, the developer or again a person associated with either of them (see section 121 for ‘associated’). Section 124 providing that the FtT may make such an order ‘if it considers it just and equitable to do so.’

3. Applications relating to Landlord’s obligation to obtain grants for remediation works

26. Section133 of the BSA amends the Landlord and Tenant Act 1985 by introducing a new S.20D into that Act. This proposed amendment concerns service charges for the costs of remediation works.

27. In short, a landlord is required to take steps to ascertain if any grant is available for the remediation works or if monies are available from third parties and, if they are, to deduct those sums from the remediation costs (and the service charges are to be reduced accordingly). S.133 indicates that the Secretary of State may prescribe, in regulations, that (in the event that the obligations are not complied with) an application can be made by a tenant to a Court or FtT for an order that remediation costs are not to be regarded as relevant costs for the purpose of service charges

4. Applications relating to Contribution Conditions/ Landlord Certificates

28. Schedule 8 to the BSA imposes limits as to the extent of a tenant’s liability for service charge costs which have been incurred in relation to remediation works.

29. One of the circumstances in which a tenant may not be required to pay a service charge in relation to the costs of works remedying a defect is where the landlord group’s net worth exceeds a prescribed sum. This is referred to as “the contribution condition”. Schedule Eight envisages that a landlord will have to provide certain information to the tenant if it wishes to argue that the contribution condition is not satisfied. Further, the Schedule envisages that the FtT will have jurisdiction to determine whether the condition is satisfied.

30. In this regard, detailed provision is now made by SI No.711 2022, The Building Safety (Leaseholder Protections) (England) Regulations 2022 (‘the 711 Regulations’) in relation to Landlord’s certificates, by which a landlord may seek to displace the presumption under the BSA 2022 that they meet the various conditions, such as the contribution condition, under Schedule 8 of the Act, by which they are barred from recovering the cost of any relevant measure as a service charge from their tenants and/or entitled (see the 859 Regulations above) to recover a contribution from another landlord. Regulation 11 provides that tenants and other landlords in a building can apply to the First-tier Tribunal to challenge any such claimed exemption where they believe that a landlord in the building has provided false or incomplete information.

The Court (County, Companies and High Court)

Part 4

31. The county court is given the power under section 96, to make orders enforcing so-called contravention notices, which can be issued by any appropriate accountable person to residents and owners of flats in HRBs, where the court is satisfied that such a notice was given, the contravention alleged in the notice occurred and it is necessary to make the order (see section 96(7)). No doubt a court order will be necessary where the evidence shows that unless the order is made the relevant person will continue to fail to comply with the requirements of the notice.

32. Further, under Part 4, the county court is also empowered under section 97 to make access orders, on the application of the accountable person, for the purposes of assessing and managing building safety risks (see sections 83 and 84) or determining if there has been any breach of duty under section 95 (duties on residents and owners).

33. In addition, the county court is given a general power of enforcement in relation to all decisions of the FtT or Upper Tribunal made under or in connection with Part 4, save any decision requiring payment of a sum (which is enforceable pursuant to section 28 of the Tribunals, Courts and Enforcement Act 2007). Thus, under section 107, the county court may make an order permitting a decision to be enforced in the same way as an order of the court. Presumably, such an order will be made where the decision of the tribunal has not been complied with and it appears to be court just and convenient to make an order.

Part 5

34. Section 112 of the BSA amends the Landlord and Tenant Act 1985. In summary these amendments introduce new landlord covenants relating to the safety of HRBs. S.30G of the Landlord and Tenant Act 1985 provides the county court has jurisdiction to deal with any claim or other proceedings arising under or in connection with any of sections 30C to 30E (implied terms etc) notwithstanding that by reason of the amount of the claim or otherwise the case would not, apart from this section, be within the jurisdiction of the county court.

35. As noted above, the decision of the FtT or Upper Tribunal made in connection with a Remediation Order under section 123 (other than one ordering the payment of a sum) is again enforceable with the permission of the county court in the same way as an order of that court (see section 123(7)).

36. In addition to the ability to pursue landlords through Remediation Orders and Remediation Contribution Orders, the Act amends the law (see section 125) so that if in the course of the winding up of a company which is a landlord, it appears it is under an obligation to remedy any relevant defects or liable to make a payment relating to the costs of remedying the same, then on the application of an insolvency practitioner in relation to the company, the court (having jurisdiction to wind up the company) can make an order requiring an associated company to make such contributions to that liability as the court ‘considers to be just and equitable.

Criminal Jurisdiction

Part 2

37. Section 23 creates two new offences relating to authorised officers of the BSR duly authorised in relation to specified paragraphs of Schedule 2 to the Act, which sets out the regulator’s investigatory powers. Firstly, under section 23(1) there is now an offence of intentionally obstructing a person who is an authorised officer in the exercise of a relevant building function. Secondly, section 23(2) provides that a person who, with intent to deceive, impersonates an authorised officer commits an offence.

38. Under section 24 there is a further offence of knowingly or recklessly providing false or misleading information to the BSR in relation to compliance with or any application under any building enactment or for the purposes of avoiding enforcement.one of the more striking provisions of the Act (see section 39) is perhaps new section 35 (to be introduced into the BA 1984) which would make it a criminal offence (triable either-way) for ‘a person to contravene a provision of building regulations, or a requirement imposed by virtue of any such provision.’ On the face of it this would appear to extend to all persons involved in the construction process, from design to execution, relating to any non-compliant work and put them at risk of criminal prosecution for what appears to be a strict liability offence. 

Part 3

39. Under this Part, section 39 provides one of the more far-reaching provisions of the Act, introducing new section 35 (of the BA 1984) which will make it a criminal offence (triable either-way) for ‘a person to contravene a provision of building regulations, or a requirement imposed by virtue of any such provision.’ On the face of it this would appear to extend to all persons involved in the construction process, from design to execution, relating to any non-compliant work and put them at risk of criminal prosecution for what appears to be a strict liability offence. 
40. The reach of this, however, is uncertain given it is proposed (per section 35(2)) that Building Regulations may provide that the offence does not apply in relation to a prescribed provision of the regulations. This will presumably enable significant parts of Building Regulations to be removed from the ambit of the offence. However, to the extent that this does not happen, it seems liability would also extend to any company officer (see section 40 of the BSA) where the offence is committed with their consent or connivance or as a result of neglect on the part of any such person. The potential exposure to criminal prosecution is on the face of things, therefore, very wide-ranging.
41. Section 38 of the BSA also introduces criminal offences of contravening  compliance and stop notices.

Part 4

42. Under section 76, if an HRB is constructed, or additional residential units added or an existing building is converted to an HRB, the relevant accountable person commits an offence if without reasonable excuse a relevant residential unit i.e. any new unit created by the works, is occupied before a completion certificate under the BA 1984 relating to the relevant part of the building is issued. Under section 77, the principal accountable person commits an offence if, without reasonable excuse, an HRB is occupied but not registered (under section 78).

43. Further, an accountable person will also be guilty of an offence (under section 87) if, without reasonable excuse, he fails to comply with section 87(1), failing, in prescribed circumstances, to give prescribed information to the BSR by the prescribed time and in the specified way; all such matters yet to be prescribed by regulations. An accountable person who ceases to be responsible for all or part of a building, is also under various disclosure obligations (see section 90) to their successor and to the BSR, failure to comply with which will also attract criminal sanction (see section 90(7)).

44. Yet further, an accountable person will be guilty of an offence if, without reasonable excuse, they fail to comply with a compliance notice (see section 99).

Conclusion

45. As will be apparent from the foregoing, the new jurisdictions and powers of the tribunals and courts under the BSA 2022 are many and various. Further, the class of such applications and appeals is not closed, but likely only to be increased by the plethora of further regulations expected under the Act. Whilst the foregoing therefore summarises the current state of the law, inevitably it will be necessary (constantly) to keep up to date as yet further detailed regulation is introduced.

 

                                                                             PAUL LETMAN

                                                                                                            JULIA PETRENKO

August 2022 

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• Paul Letman
• Julia Petrenko

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