Amended Building Safety Bill Published22 Jul 2021 // Insights
John Wevill reviews the revised Building Safety Bill in the House of Commons
Following a period of consultation and scrutiny, both by Parliament and industry, the Government introduced a revised Building Safety Bill in the House of Commons on 5 July 2021.
The bill must now pass through both the Commons and the House of Lords to become law, a process which is expected to take at least nine months. Once passed, the bill will establish a stricter safety regime in England and Wales for residential buildings, overseen by a new Building Safety Regulator established by the Health and Safety Executive. In addition, the bill will make significant changes to fire safety regulation and the control of construction products.
The stated intention of the Government in introducing the bill is to ensure that building safety risks are effectively managed and resolved in “higher risk” buildings – in particular new and existing high-rise residential buildings of 18 metres and above – taking cost into account. To achieve this, the bill will require the implementation of specific “gateway points” during design, construction and completion phases, so that consideration of safety risk is embedded in the process from the earliest stages of planning, through design, construction and in-use.
Increase in time limits for claims
The reforms include a change in relation to the limitation period that applies to residents seeking to make claims for defective building work. The relevant limitation period, applicable to dwellings regardless of height, will more than double from 6 years to 15 years.
This change will apply retrospectively, a detail which will raise concerns for developers, contractors and construction professionals, whose ability to defend themselves against claims may become compromised as memories fade over time and written records of events are mislaid or destroyed.
Additional obligations for developers and building owners
The bill will legitimise claims from residents of high-rise buildings, with more routes available to raise concerns about safety, including directly to building owners and managers. New mechanisms will be put in place to ensure their concerns are heard and taken seriously, including the right to raise them with the Building Safety Regulator.
In relation to the costs of remediation, works to buildings that do not comply with safety legislation, it will not be possible for building owners and landlords to simply pass those costs down to residents. Instead owners will be required by the bill to take all reasonable steps to seek alternative ways of meeting remediation costs, and to provide evidence that this has been done, before passing them on.
Campaigners for the protection of the interests of residents have criticised this aspect of the new legislation for potentially leaving residents still exposed to the risk of having to pay substantial sums for remediation works. The Government press release announcing publication of the bill, mindful of this criticism, highlights their commitment to fully fund the costs of replacing unsafe cladding for all leaseholders in residential buildings 18 metres and over – in England – and the introduction of a new levy and a tax to ensure that the construction industry “pays its fair share” towards the costs of cladding remediation.
Building owners will be required to demonstrate that they have in place effective, proportionate measures in place to manage safety risks in their buildings, with clear lines of responsibility for safety during design, construction, completion and occupation of high-rise buildings. Duty holders, most importantly the building owner, will be required to facilitate the creation, maintenance and updating of the crucial safety information about the design of a building, its construction and how it is maintained and managed. This is the “golden thread” of information that should enable building owners and managers to quickly identify safety issues as they arise and take appropriate action to remedy them.
Residential developers will be required to become members of the New Homes Ombudsman scheme, intended to protect homebuyers by obliging developers to address defects in the homes they have sold. Developers may also have to compensate homebuyers where necessary. Any developer breaching the basic requirement to belong to the New Homes Ombudsman scheme may be subject to additional sanctions.
The bill enhances the regulatory framework for construction products. The Office for Product Safety and Standards will lead a market surveillance and enforcement regime. The regulator will have powers to remove unsafe products from the market. Those who “compromise public safety” by manufacturing, specifying or using such unsafe products – may be subject to prosecution, or the imposition of civil penalties.
For the wider public, the Government’s focus on the enhanced regulation of safety in residential buildings will be welcomed. Advocates for the rights of leasehold occupiers are likely to be disappointed though, with the remaining potential risk that in some cases, it will be the residents that foot the bill for the cost of remediation works to their unsafe homes.
Developers and building owners will also have their concerns with the new bill, in particular, their additional and enhanced obligations to fully embed safety considerations at the heart of the design, construction, maintenance and management of their buildings – and the requirements to be able to demonstrate that they have done so through the required “golden thread” of safety information. Failure to comply, and be seen to be complying, with the letter and spirit of the bill could be likely to have adverse impact on the value of a building owner’s asset.