The Building Safety Bill 2021 01 September 2021
As a sequel to Chambers’ Blundell Lecture on the subject of cladding defects and liability, may I add a few notes about the current Building Safety Bill published on 5 July 2021. This lengthy Bill is a central element of the Government’s response to the Grenfell disaster of 2017. It is divided into 6 parts and contains (as clause 1(1) announces) ‘provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings.’ In particular, you will want to be aware of the following key provisions of the Bill.
Part 2: The Building Safety Regulator
This Part proposes the creation of a new Building Safety Regulator (‘BSR’), although what that really means is the existing Health and Safety Executive charged with various safety objectives in the exercise of its ‘building functions’ under the Building Act 1974 and Health and Safety at Work Act 1974 or as prescribed, subject to a series of duties with regard to building safety. For example, under section 4 ‘Duty to facilitate building safety: higher-risk buildings’, the BSR ‘must provide such assistance and encouragement to relevant persons as it considers appropriate with a view to facilitating their securing the safety of people in or about higher-risk buildings in relation to building safety risks as regards those buildings’. Each phrase being subject to separate definition.
Thus, ‘relevant persons’ include the new building safety manager (see below) as well as residents themselves. Whilst ‘higher risk buildings’ are those 18m or more in height or having at least 7 storeys and containing at least 2 residential units (see section 62). As well as this duty to facilitate building safety in such buildings, the BSR will have duties to keep safety and standard of buildings under review (under section 5) and will be required (under section 6), again in somewhat amorphous terms, ‘to provide such assistance and encouragement as it considers appropriate to persons in the built environment industry (as defined at section 29) and registered building inspectors, with a view to facilitating their improving the competence of persons in that industry or members of that profession (as the case may be)’.
Pursuant to these duties and in order to give them some content, the BSR is empowered to make proposals to the Secretary of State for the making of regulations (section 7). The BSR must also establish a system (the so-called ‘voluntary occurrence reporting system’) for collecting information about building safety, as well as a plethora of new committees and fora, viz. a new Building Advisory Committee, to replace (some might say, rebrand) the existing Building Regulations Advisory Committee for England which is to be abolished, a committee on industry competence and a new ‘Residents Panel’ intended to give residents ‘a voice’ in the new system of consultation, strategic plans, revised strategic plans, authorised officers, information, guidance and regulation.
In addition, as part of this rather labyrinthine Bill, a new jurisdiction is to be introduced to enable any ‘prescribed decision’ of the BSR to be reviewed and then even appealed to the First-tier Tribunal (although rather unsatisfactorily what is prescribed will be a matter for regulations to be made by the SoS). Indeed, the Bill proposes the creation of multiple new jurisdictions in the FtT, to determine appeals and applications related to building safety, again in many instances leaving the details to be worked out by subsequent regulation. Notably, and no doubt to give the scheme ‘teeth’, Part 2 also creates an either-way offence of providing false or misleading information to the BSR, with conviction on indictment being punishable by up to 2 years imprisonment or a fine (or both).
Part 3: A New Building Control Regime under the Building Act 1984
Part 3 of the Act contains a raft of provisions to define so-called Higher Risk Buildings and amend the Building Act 1984 (BA 1984) to enable a new building control regime dedicated to such buildings as well as a new system of registration and supervision of building inspectors and ‘approvers’. Firstly, new section 120D to be inserted into the BA 1984 allows the SoS to make regulations actually to define a ‘higher-risk building’, after consultation and the receipt of recommendations or advice from the BSR regarding the types of building that should be HRB’s. Further, section 91 of the BA 1984 is to be amended to make the BSR the building control authority for works to HRB’s (see section 91ZA) and can also by notice (section 91ZB) become the building control authority (‘BCA’) for works with a prescribed connection with HRB works.
Extensive amendments are also proposed (see section 32) to Schedule 1 of the BA 1984, empowering the making of Building Regulations, to enhance the powers that the relevant BCA has to control any HRB work by imposing additional requirements at the approval stage. The amendments also provide for the making of Building Regulations for and in connection with certificates to be given by members of or in accordance with ‘a scheme’ and for approval of such schemes by the appropriate national authority or designated person, subject to a right of appeal against any refusal to the appropriate court or the FtT. The precise ambit of ‘a scheme’ is rather obscure, but the proposal appears to be that specific works to HRB’s may be approved as aforesaid, only where it appears the scheme includes provision of adequate insurance cover in relation to any work to which an initial notice under the BRegs relates (see section 47).
Further, there is a widely drawn power to enable prescribed appointments to be made in relation to any works to ensure compliance with Building Regulations. But the ‘skills, knowledge, experience and behaviours’ of any such appointee and the indeed the scope of their powers are again, as in so many other instances under the Bill, left to be defined by further regulations. The intention is presumably that such persons and/or BCA’s will have greater control over works to ensure compliance with BRegs. Certainly, the Act introduces relevant powers in the form of ‘compliance notices’ and ‘stop notices’, with criminal sanctions for contravention.
But most striking proposal is perhaps new section 35 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 would be at risk of criminal prosecution for what appears to be a strict liability offence. The reach of this, however, is uncertain given it is proposed that Building Regulations may provide that the offence does not apply in relation to a prescribed provision of the regulations.
This will presumably enable swathes 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 39) 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 appears to be so wide-ranging, from site operatives to the board room, it is respectfully suggested that it would be remarkable if this section of the Bill was passed in its present form.
In addition, Part 3 introduces new and very similar regimes for the registration of all building inspectors and, the newly named, building control approvers (who will act through registered building inspectors). The proposals provide that the regulatory authority must establish a register for each, the form of application and registration and the duration of registration. There is also provision for the publication of a new code or rules of conduct, information gathering powers, professional misconduct investigations, sanctions for professional misconduct, as well as new offences that may be committed by inspectors or approvers of carrying out work outside the scope of their registration. In addition, the Bill proposes a rather curious new offences of ‘impersonating’ a registered building inspector/approver or a person doing anything which implies that they are a registered building inspector/approver when they are not.
Further, to govern the professional work of both building inspectors and building control approvers, the new regulatory authority is to be empowered to make ‘operational standards rules’ and to police these by the giving of (i) an improvement notice (ii) a serious contravention notice (iii) by cancellation of an approver’s registration or (iv) in the case of a local authority recommending to the Secretary of State that a transfer of functions order is made. The recipient in each case having a right of appeal to the appropriate court or tribunal against the action taken.
Part 4: Management of Safety in Higher Risk Buildings
This part, as section 58 heralds, contains ‘provisions about the management of building safety risks as regards occupied higher-risk buildings.’ A building safety risk is, as you might expect, a risk to the safety of people in or about a building arising from spread of fire, structural failure or any other prescribed matter (section 59) and a higher-risk building is one that is at least 18m in height or has at least 7 storeys and contains at least 2 residential units or as otherwise as may be prescribed (section 62).
In relation to any such building it is proposed the regulator (above) should have powers to make recommendations and give advice to the Secretary of State about what buildings should be HRBs and the making regulations to avert any ‘major incident’ defined as an incident resulting in a significant number of deaths or serious injury to a significant number of people.
Part 4 would establish a duty for HRBs to be registered (section 73) and to apply for (sections 74 and 75) and display (section 77) a building safety certificate (section 76). It also creates a series of ‘relevant duties’ under, or under prescribed regulations made under, any of the following (a) sections 78 and 81, a duty to appoint a building safety manager etc. (b) section 83, a duty to assess building safety risks (c) section 84, management of building safety risks (d) section 85, duties relating to safety case report (e) section 87(5), duties relating to mandatory occurrence reporting (f) section 89, provision of information to regulator, residents etc) and (g) section 91, duty to produce a residents’ engagement strategy - perhaps the most striking obligation.
These relevant duties are imposed upon the ‘principal accountable person’ for the occupied HRB, normally the person who holds the legal estate in possession in the relevant (common) parts of the structure and exterior of the building and/or is subject to the relevant repairing obligation. Here again the FtT being given a new jurisdiction to determine who the principal accountable person should be based upon who would be most ‘appropriate’, in cases where there is more than one candidate (sections 69 to 71).
The regulator to have powers of enforcement against the relevant accountable person and other responsible parties. Firstly, by means of ‘compliance notices’ (sections 98 to 100); any such notice being appealable to the FtT (section 112), whilst any contravention, without reasonable excuse, ‘that places one or more people in or about the building at critical risk’ will constitute a criminal offence (section 101). Secondly, by way of a ‘special measures order’ appointing a ‘special measures manager’ (sections 102 to 104); where following an ‘initial notice’ and ‘final notice’ procedure, such an order may be obtained on application to the FtT. The FtT to be given also a new jurisdiction to hear appeals against the regulator’s decisions in relation to registration and other decisions to be prescribed.
The other main feature of Part 4 is the proposed amendment to the Landlord and Tenant Act 1985 to imply terms relating to building safety and building safety charges into the lease of any dwelling in an HRB. Under these landlords will be obliged to comply with their building safety duties, cooperate with any relevant person fulfilling like duties and comply with any special measures order. Whilst tenants will be obliged to allow access for these purposes, comply with their own duties under ss95 and 96 of the Act (not to act in a way that creates a significant risk of a building safety risk materialising etc.) and likewise with any special measures order so far as it relates to the tenant.
Part 5: Other provisions about safety, standards etc.
In many ways this is the Part of the proposed Act with the most striking ideas. Firstly, under section 124 is the proposal for a new section 20D ‘Limitation of service charges: remediation works’ in the Landlord & Tenant Act 1985. This section will impose on landlords an obligation to take reasonable steps to ascertain whether any grant is payable in respect of remediation works and, if so, to obtain the grants. Likewise, to take reasonable steps to ascertain whether monies may be obtained from a third party in connection with such works and, if so, obtain those monies from the third party. These express terms providing an answer to the issues left unresolved by Oliver v Sheffield City Council [2017] EWCA Civ 225 and Avon Ground Rents v Cowley [2019] 1 WLR 1337.
Further, the Bill proposes (see section 126) an amendment to the Limitation Act 1980, introducing new section 4B ‘Special time limit for certain actions in respect of damage or defects in relation to buildings’ essentially extending the limitation period for claims under section 1 and 2A (as also introduced by the Bill) of the Defective Premises Act 1972 to 15 years from the date on which the right of action accrued. Albeit the Bill also provides that nothing in this section enables an action to be brought where the action was settled or finally determined (whether on the basis of limitation or otherwise) before this section came into force.
Crucially though the Bill proposes that the amendment should have retrospective effect as follows, ‘The amendment made by subsection (1) in relation to an action by virtue of section 1 of the Defective Premises Act 1972 is to be treated as always having been in force.’ However, presumably to ensure the passing of the draft legislation into law, the Bill makes specific provision for any action brought in reliance on the retrospective operation of the 15 years (i.e. where the claim was already barred by limitation) to be dismissed if it is necessary to do so to avoid a breach of the relevant defendant’s rights under the Human Rights Act 1998. Potentially, therefore, what the Act gives with one hand, it takes away with the other. On the face of things lessees regaining a cause of action which they had lost, but then having potentially in every case to meet a complex and compelling challenge to their claim under the HRA.
The other significant initiative in this Part, not to be overlooked, is the proposal for the establishment of a new homes ombudsman scheme (sections 127 to 132). Open to all developers this scheme will enable qualifying complainants to have complaints against members of the scheme investigated and determined by an independent individual.
Conclusions
Clearly, the Bill contains extensive provisions aimed at improving building safety, with the establishment of the new Building Safety Regulator under Part 2, an enhanced Building Control regime under Part 3 and imposition of diverse duties aimed at improved safety management and accountability in Higher Risk Buildings under Part 4. The Bill also attempts to assist lessees presently facing significant liabilities, by imposing on their landlord obligations to obtain grants or recover costs from third parties where possible, as well as retrospectively extending the limitation period for claims under the DPA to 15 years.
However, critics of the Bill may be forgiven for saying that there is a risk that the straightforward requirement to ensure buildings are safe will be lost in a web of complex legislation and mired in a plethora of regulation. Likewise, that the Bill fails to set out any clear pathway to ensure products such as ACM cladding that were always dangerous building products (like High Alumina Cement before it) can never be approved for use.
Further, many will say the attempts to assist lessees do not go far enough, failing to circumvent the developers’ usual defence (however unmeritorious) to DPA claims that their buildings were compliant when built and whilst grabbing the headlines with the new 15-year limitation period, in reality consigns lessees in each case to yet further contentious litigation involving HRA defences to the retrospective operation of the statute. Those lobbying on behalf of lessees would no doubt have preferred a more direct approach to liability, to say nothing of increased funds to meet the bills.
September 2021
PAUL LETMAN
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