Building Safety Act 2022

Building Safety Act 2022 has been given Royal Assent ─ an Act to make provision about the safety of people in or about buildings and the standard of buildings, to amend the Architects Act 1997, and to amend provision about complaints made to a housing ombudsman ...

This is the primary legislation stretching to 265 pages ─ PDF COPY HERE

Secondary legislation is still to come and may take some time to follow and be enacted ... leaving much of the detail still to be statutorily determined ...

Section 38 of the 1984 Building Act affords a statutory right of action to anyone who suffers damage as a result of a breach of the Building Regulations interestingly, and originally some 38 years ago ─ however, the provision for Civil Liability was never activated or "commenced" by the Secretary of State under Section 134 and, it appears unclear why Civil Liability had never been commenced before now ... to date, Section 38 has never been brought into force.

The intent now is to bring this into force alongside the changes to the Defective Premises Act 1972 [DPA] thereby allowing claims for compensation to be brought for physical damage, or injury, caused by a breach of building regulations. Unlike the DPA and the new construction product cause of action, Section 38 is not limited to dwellings, applying to ALL breaches of the building regulations.

Section 170(3)(b) on page 189 of the 2022 Building Safety Act now confirms that commencement of Civil Liability will occur at the end of June, two months from the provision becoming law on 28 April 2022.

As Section 38(4) clarifies that the term “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition) which is wide ranging in scope. Civil Liability may NOT be applied retroactively

It relates to the Power to make building regulations granted to the Secretary of State in Section 1 of the 1984 Building Act for purposes of "...securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings"

let's hope the construction sector learns from the 30-years since the EU published Directive 92/57/EEC which the UK enacted into law as the CDM Regulations

David Jones - FCIOB FASI MRICS FIConstM

The Building Safety Act 2022 [the Act] has 6 Parts ─

Part 1 states the new law contains provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings.

Part 2 contains provision about the building safety regulator and its functions in
relation to buildings in England.

Part 3 amends the Building Act 1984.

Amendments made by Part 3—

(a) provide that the regulator is the building control authority in relation to higher-risk buildings in England, and

(b) require the regulator (for England) and the Welsh Ministers (for Wales) to establish and maintain registers of building control approvers and building inspectors.

The Act also seeks to redress the balance of where the cost of any remedial works should sit by extending the limitation period for certain types of claim (namely the Defective Premises Act 1972), reducing leaseholders’ liability for the cost of remedial work and amending the rules governing architects’ competence – this is all geared to offering more recourse to owners of buildings with fire safety defects

Part 4 is about occupied higher-risk buildings in England, and imposes duties on accountable persons.

Part 5 contains further provisions, including—
(a) provisions about remediation and redress;
(b) provision requiring a new homes ombudsman scheme to be established;
(c) powers to make provision about construction products;
(d) further provision about fire safety;
(e) provision about the regulation of architects;
(f) provision about housing complaints.

Part 6 contains general provisions.

Although the making of the Building Safety Act has been driven largely from the focus on the tragedy of the fire that destroyed Grenfell Tower, this new law is not limited to higher risk buildings. Part 4 of the Act is limited to in scope buildings and Part 3 includes the definition of the limitations for in scope buildings ─ it is unclear as to the reason(s) why the limitations definition was not incorporated in part 4

Currently, the ICM interpretation and recommendation at this early final publication stage is that parts 2,3, 5 & 6 need to be read as to apply more generally. The sector needs to see the next tier of legislation in order to work this out exactly.

Government are standardising the information that those responsible for high-rise residential buildings will need to provide to the regulator and are introducing greater transparency to empower residents, local communities, and interest groups ─ as part of the new building safety regime, government are bringing in a system of checks on high-rise residential buildings. These checks will be carried out by the Building Safety Regulator ─ read more on the published factsheet link ...

Building registration and certification: factsheet

Updated 5 April 2022

The new regime introduced by the Building Safety Bill is a strengthened regulatory regime for high-rise and other in-scope buildings (higher-risk buildings), improving accountability, risk-management and assurance ─ higher-risk buildings in the Act are defined by their height and use. These internationally used factors are an industry-accepted way of identifying buildings where the consequences from a fire or a structural failure can be significant.The new regime applies to buildings that are at least 18 metres in height or have at least 7 storeys and have at least two residential units. It also applies to care homes and hospitals meeting the same height threshold during design and construction ─ read more on the published factsheet link ...

Buildings included in the new more stringent regulatory regime: factsheet

Updated 5 April 2022

As the sector waits for the secondary legislation to be developed and enacted, it is the opinion of Institute of Construction Management that in order to provide a holistic approach to the safe design, construction and use of all types of structures, it is recommended that a standardized approach is agreed for all five key duty holders under CDM 2015 using BSI Flex 8670. This approach should include the measurement of the specific higher competences required for HRBs (>18m) as well as other high-risk projects is set.
1) It is proposed that there is a common competency requirement for key duty holders across all construction.
2) Competency for the key duty holders is to be split into a number of types or levels, denoting those who have general knowledge, and those who have specific skillsets pertinent to particular types of construction or levels of risk.
3) The competency framework should allow for collaboration between each group of key duty holders to provide a pathway for individuals and organizations to increase their competency in other areas of responsibility.
4) A central register is to be held for key duty holders’ competencies, based on their skills, knowledge, experience, and training requirements.
5) The register should use Bloom’s Taxonomy to assist certifying bodies in gauging their members’ competency.
6) The key duty holders on any given project should be required to demonstrate their competence relevant to the size and type of project to which they have been appointed.
7) Regulation 5 of CDM2015 and Regulation 6 of Part 3 of the Building (Appointment of Persons, Industry Competence and Dutyholders) are amended so that there is a requirement for a principal designer on all construction projects.
8) The principal designer on any given project could be a single designer, or any of the other duty holders, dependent on the size and type of project and their level of competency.
9) The framework for the measurement and control of key duty holder competencies should be defined in a PAS along similar lines to PAS 525 – Framework for assessing professional engineering competence

FACTSHEETS

These factsheets provide more information about key provisions in the BSA ... CLICK HERE TO ACCESS

next 12-18 months from 2022 and beyond will be crucial ...

In December 2017 Dame Judith Hackitt published her Interim Report that described how the regulatory system covering high-rise and complex buildings was not fit for purpose ─ then in May 2018 presented Building a Safer Future - the Final Report of her Independent Review of Building Regulations and Fire Safety:

In the intervening period we have seen further evidence confirming the deep flaws in the current system - writes Dame Hackitt ...

► lack of an audit trail as to whether essential safety work was carried out on the Ledbury Estate, and other large panel systems tower blocks;

► a door marketed as a 30-minute fire door
failed prior to 30 minutes when tested, revealing concerns around quality assurance and the ability to trace other fire doors manufactured to that specification;

► another tower block fire where fire spread
between floors via wooden balconies; and

► a major fire in a car park in Liverpool which came close to encroaching on a block of flats nearby ...

The Report called for a radical rethink of the whole system and how it works ─ most definitely not just a question of the specification of cladding systems, but of an industry that has not reflected and learned for itself, nor looked to other sectors.

Of course, this does not mean that all buildings are unsafe. Interim mitigation and remediation measures have been put in place where necessary for existing high-rise residential buildings to assure residents of their safety regarding fire risk. It is essential that this industry now works to implement a truly robust and assured approach to building the increasingly complex structures in which people live.

The key issues underpinning the system failure include:
► Ignorance – regulations and guidance are not always read by those who need to, and when they do the guidance is misunderstood and misinterpreted.
► Indifference – the primary motivation is to do things as quickly and cheaply as possible rather than to deliver quality homes which are safe for people to live in. When concerns are raised, by others involved in building work or by residents, they are often ignored. Some of those undertaking building work fail to prioritise safety, using the ambiguity of regulations and guidance to game the system.
► Lack of clarity on roles and responsibilities – there is ambiguity over where responsibility lies, exacerbated by a level of fragmentation within the industry, and precluding robust ownership of accountability.
► Inadequate regulatory oversight and enforcement tools – the size or complexity of a project does not seem to inform the way in which it is overseen by the regulator. Where enforcement is necessary, it is often not pursued. Where it is pursued, the penalties are so small as to be an ineffective deterrent. The above issues have helped to create a cultural issue across the sector, which can be described as a ‘race to the bottom’ caused either through ignorance, indifference, or because the system does not facilitate good practice. There is insufficient focus on delivering the best quality building possible, in order to ensure that residents are safe, and feel safe.

It is a global concern and England is by no means alone in needing to improve building safety. Scotland has provided some excellent examples of good practice which are included in the report, in particular
around supporting resident participation and collaboration. However, at the time of writing, the Scottish Government had commissioned a further review of building regulation, driven by serious structural failures which have occurred there.

The Building Products Innovation Council in Australia Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Final Report has also published its own report, Rebuilding Confidence: An Action Plan for Building Regulatory Reform

Competence is key! ~ assurance of insurance is essential!

Alarmingly for developers, contractors and consultants is the inclusion of retrospective claims. The Building Safety Act now affords those who can claim under the Defective Premises Act the ability to introduce claims up to 30 years of after completion of the dwelling. This will unsettle contractors and designers relying on the comfort of a limitation defence in respect of historic projects, who may now find themselves battling claims long after the completion of their developments.

Some of the new law and highlights to be considered ...

New construction product cause of action

The BSA introduces a new cause of action that will enable claims to be brought against construction product manufacturers and suppliers where a product has been mis-sold; is found to be inherently defective; or there has been a breach of existing construction product regulations.

If this contributes to, or causes a dwelling to become ‘unfit for habitation’ under this new cause of action, a civil claim may be brought through the courts.

This is subject to a retrospective 30-year limitation period, applicable to cladding products only, and a 15-year prospective period that will apply to all construction products. These changes mirror the changes made to the Defective Premises Act.

Section 38 Building Act

Section 38 of the Building Act 1984 has not been brought into force, meaning that, although it was approved by Parliament as part of the 1984 Act, it has never taken effect.

It allows a claim for compensation to be brought for physical damage (e.g. injury or damage to property) caused by a breach of building regulations. For example, if a fire is caused in a property, or if a child living in a flat develops a respiratory condition because a property is damp, due to building work not meeting building regulations at the time the work was done, section 38 will allow the homeowner to seek compensation from those responsible for the damage caused.

Government has now announced it will be commencing section 38 of the Building Act 1984 alongside the Defective Premises Act changes, meaning it will be bringing this part of the legislation into force.

The UK Parliament are also legislating to extend the limitation period for section 38 of the Building Act to 15 years meaning that homeowners will be able to bring a claim up to 15 years after the work was completed ─ as this provision has not yet been commenced, the provision, including the extended limitation period, will apply prospectively, meaning that it will apply to work done after the section comes into force.

Purely financial loss is not covered by section 38, although it is in scope of a Defective Premises Act claim.

It is worth understanding that unlike the Defective Premises Act and the new construction product cause of action, Section 38 is not limited to dwellings, and applies to all breaches of the building regulations.

Building Liability Orders

The High Court may issue a Building Liability Order under the Building Safety Act – in respect of liability that relates to a building and is incurred under the DPA or Section 38 of the Building Act, or as a result of a building safety risk.

Any relevant liability of a body corporate is also a liability of an associated body corporate and the High Court can also order that any such liability is joint and several liability of two or more corporate entities.

New Building Safety Regulator

Part 2 of the BSA is on the creation of a new Building Safety Regulator [BSR].

The BSR will be responsible for overseeing and driving improvements in the safety and performance of all buildings, and for enforcing a more stringent regime for higher-risk buildings.

The BSR will be set within the HSE who will therefore then oversee skills for inspectors and building control, and higher-risk buildings.

New Home Ombudsman

There is provision made in the BSA for the creation of a new Homes Ombudsman scheme to provide dispute resolution for, and determination on complaints by buyers of new build homes against the developers.

When the arrangements for the Homes Ombudsman scheme have been made, developers will be required to become members of the scheme and remain members

New duty-holder regulations designed to ensure that building work (including design) complies with the Building Regulations

Under a new Sl (a draft of which has already been published), CDM duty-holders will gain new responsibilities under a separate regime focused on raising standards, and designed to ensure compliance with Building Regulations requirements. The new regulations will apply to all work to which the Building Regulations apply.

A stricter regulatory regime for higher-risk buildings

The BSA creates a more stringent regime for higher-risk buildings, including residential buildings over 18m in height, or in excess of six storeys. One of the other SIs published in draft form provides further clarification on the definition.

Accountable Person

All occupied higher-risk buildings will be required to have at least one clearly identifiable Accountable Person, who is responsible for ensuring that the fire and structural safety is properly managed for the whole building.

The ‘Golden Thread’ of vital building information

One of the key tenets of the legislation is the obligation of the duty-holders to create and maintain a ‘golden thread’ of building information throughout the lifecycle of the higher-risk building. All duty-holders will be required to keep up-to-date vital safety information about the building design, build and management. This duty will extend to the Accountable Persons. The government has confirmed that this ‘golden thread’ must be captured and maintained digitally for the entire lifecycle of the building.

Gateways

Designed to bring safety to the heart of the construction procurement process and maintain this through the building’s lifecycle, the BSA introduces three ‘GATEWAYS’. These are mandatory hard-stops during;

(i) the planning stage;

(ii) prior to building works commencing; and

(iii) the completion/final certification stage.

The gateway regime applies to both the design and construction of new, higher-risk buildings, in addition to the major refurbishment of existing higher-risk buildings.

Strictly speaking the first of the Gateways now introduced is not integral to the Construction, Design and Management process part of a project -but- is nevertheless inextricably linked to the later resource provision ... ‘Gateway one’, commonly referred to as the planning gateway, came into force in August 2021 and was introduced via an amendment to existing planning legislation as the Bill was still to be scrutinised by Parliament as part of the legislative process.

Since the start of the year, the Planning Gateway One [PGO] service at HSE has raised concerns on over half of all applications it was required to be consulted on ... poor building design for tall buildings in England is being tackled right from the outset of a building’s life following the introduction of HSE as a statutory consultee on planning applications ...

Common fire safety design issues HSE has identified include ► smoke vents and external wall openings close to neighbouring properties and ► restricted or non-existent access for fire appliances. Also, single fire shafts, that represent the only means of escape for residents on upper storeys, could easily become compromised where they connect with higher fire risk areas, such as car parks or waste storage facilities ─ the message from the HSE's policy lead Industry needs to stop thinking that fire safety should only be dealt with at the building regulations stage – it starts at planning – CLICK HERE FOR MORE DETAILS

'The Three Gateways'

Competence is key to unlocking

Client MUST set up the resources

Construction Stages controlled

Managed Stage MUST be safe

PROTECT the Users - save lives

David Jones - Institute of Construction Management

Gateway 1 – ‘planning gateway one’

The BSR will be a statutory consultee from the outset when a building owner identifies a project at its commencement and in all relevant planning applications. The developer will be expected to submit a fire statement - which is similar to a design and access statement - and which will provide relevant early vital information about water supply and emergency access.

Gateway 2 – the design stage

Before any construction begins, the developer will be required to provide good, robust details of building design and building methodology to ensure safe construction for its intended use. The developer will also be required to consider and anticipate the inevitable changes that take place during the construction phase and to ensure competency throughout the supply chain ─ the more front end knowledge, identification of the criteria and potential hazards likely to be encountered, early planning consideration with possible good qualitative assessment of potential control mechanisms, understanding of the objectives, competent proposals of the engineering, application of effective due diligence, all underpinned by a robust Golden Thread of Information will better assist to deliver expectations!

Gateway 3 – the completion stage

At this pre-habitation stage, final checks will be performed to ensure the building has actually been constructed as intended and can be handed over and occupied safely. If the developer fails to fulfill the requirements under Gateway 2 and Gateway 3, then the building cannot progress to the next stage.

Occupation stage – Safety Case and Certificate

The building owner or landlord will be required to develop a Safety Case which must demonstrate that the building owner(s) has the capability to manage the fire and structural risks within their building safely. Once satisfied, the BSR will issue a Certificate or confirmation, which may include recommendations.

The Golden Thread

Running through all of these stages is the ‘golden thread’, which is intended to ensure there is a common consistent thread of concern for building safety and coordination between all those responsible for the building during its lifecycle. At every stage, there will be a ‘duty holder’, who is required to share information with the BSR and with the next duty holder as the building’s life cycle progresses. At the planning stage this will be the principal designer; during the construction phases this will be the principal contractor; and during occupation this is likely to be the building owner(s).

Protecting leaseholders and ensuring that the responsible are accountable

As the Bill made its way and passed through Parliament, the focus of the draft legislation turned to addressing how best to protect resident leaseholders and includes a number of new measures to shield leaseholders from costs related to the remediation of unsafe cladding.

The new law now also includes some rather draconian sanctions where companies may be compelled to remediate their building and the government will have power to block non-compliant companies from future building projects in England.

Following the Grenfell Tower tragedy in June 2017 and the long running Public Inquiry that is now reaching five years, the Government has been put under pressure to respond to the cladding crisis which has left many residents of high rise dwellings feeling unsafe in their own homes.

The Rt Hon Michael Gove MP, who currently in 2022 heads up the Department for Levelling Up, Housing and Communities [DLUHC], has responded by establishing the Building Safety Fund [BSF] and also requiring home builders to sign up to the Building Safety Pledge [the Pledge]

The BSF was introduced by Government in May 2020 to cover costs related to the removal of dangerous non-asbestos cladding materials [non-ACMs] cladding in high-rise buildings in England (ensuring that leaseholders do not bear the cost of addressing safety risks associated with non-ACM cladding in tall buildings). Discussions between the Home Builders Federation [HBF] and the DLUHC have been taking place over the last few months culminating recently in the publication of the Pledge.

Commentary from The Institute of Construction Management

The unique historic timeline of the ICM since its original Founder Association in 1842 came together for registering, combining, and educating its membership created the oldest known Association for Builders, Foremen and Clerk of Works ... the ICM is a truly member-led not-for-profit charity organisation throughout its lengthy timeline ─ the current company of The Institute of Construction Management registered its constitution without shareholders interest at Companies House in 1974; marking an earlier proud pivotal change in UK legislation with the enactment of the Health and Safety at Work Etc. Act 1974; and that company registered with The Charity Commission as Trustees of The ICM Members Benevolent Trust and has remained true to its original objectives; even its executive officers and registered directors are all volunteers to the original call ...

The enactment of the BSA is a pivotal marker along the timeline of UK legislation where cultural change is a prime objective and for which the Government has set out its Transition Plan ... however, as the sector moves along its timeline of great change waiting for the vital secondary legislation to set out the detail, the ICM is aware there is clear evidence emerging in the industry during the transition period of much organisational silo mentality and personal commercial objectivity strengthening. It is the ICM view that covert commercial networks with their own specific agendas and interests are developing that could eventually be counter-intuitive to the aims and original objective of Dame Judith Hackitt.

In 2017 the ICM with its true open door anticipated some pan-industry formula mechanism would be needed to be established to ensure and control when competence is needed as a metric to be recorded the value is established and appropriately registered centrally against a common framework of robust benchmark comparison enabling the trusting innocent users to be assured they are being kept safe.

Of course, the BSA is intended to be revolutionary across the built environment, but not without cost and putting the regulatory framework in place, establishing the BSR, the new Home Ombudsman Scheme and the new gateway process will require considerable financial resources. There is also the issue of the HSE now being at the heart of the building control system in England and the skills sets it also requires.

In 2019 the ICM collaborated with the CITB to create a new framework designed to change culture, track and register competence, understand behaviours, and improve competencies in the digital world. With time, this will create lasting generational change. In the short term, the BSA will put additional pressure upon the real estate development market and construction industry as developers, contractors, consultants and product manufacturers and suppliers find their potential liabilities widen.

The ICM was requested to prepare its Position Paper on Competency & Safety in Construction to be put before the Government's Department for Leveling Up Housing & Communities and a copy may now be read HERE - [ICM Position Paper - Competence & Safety in Construction : issue date 08/02/2022]

The Institute of Construction Management [ICM], as the voice of the construction industry, identified the need for a standardized approach to the measurement of competency for the four key duty holders under the Construction (Design and Management) Regulations 2015 [CDM2015]. The Institute already has in place a registry for competent principal designers and is currently working with client organizations to develop a measurement for competency for clients. CDM2015 raised the priority of responsibility toward the client having, in previous incarnations, relied on a CDM-Coordinator and a Design Supervisor before that.

The ICM has always represented the true clarion Voice For Construction Management across the UK and now urges and encourages all other professional bodies and developing siloed industry groups / networks and their members to move beyond individual / commercial agendas at this important period and come together in common purpose around a common table to enable that lasting generational culture change to rebuild the trust of the innocent communities we serve ...

Ed.