By Sarah Rock, partner and head of construction at Boodle Hatfield
The Building Safety Act (the “Act”) gained Royal Assent in April 2022 and has gradually been brought into force since through a myriad of secondary legislation. The regulations contained within these pieces of secondary legislation need to be read in conjunction with the Act itself and with each other, with the resultant effect that this is a highly complex and little understood area of law.
The Act was borne out of The Hackitt Report, published in May 2018 following the tragic fire at Grenfell Tower. The report quite rightly identified many failings within the design, construction and residential asset management industries and recommended numerous courses of action to correct these. One of the key recommendations of the report was a new regulatory framework focused in the first instance on higher-risk residential buildings, buildings over 18 metres or 7 storeys and containing at least 2 residential units (“HRB”s).
The new regulations – an overview
The regulations that have come into force since April 2022 cover a plethora of topics which predominantly affect HRBs, those who design and construct them, those who own and manage them, and those who live in them.
When designing and building HRBs the approval of the new Building Safety Regulator (the “Regulator”) must now be sought at certain gateway points: planning, prior to work commencing on site and post practical completion. The process is intended to ensure that fire safety is considered, consistently, at all stages of a project. The gateways are inherently sensible from a safety perspective but the reality faced by many developers at present is that of significant delays. Lack of familiarity with the requirements matched with an under resourced Regulator is seeing some projects experiencing gateway delays of up to, and in some cases in excess of, 12 months.
Owners and managers of existing HRBs are now required by the regulations to adhere to strict rules, some of which carry criminal liability for non-adherence. HRBs must be registered with the Regulator prior to occupation with a named principal accountable person, the person with fire and structural safety responsibility for the building, on the register. The principal accountable person must now maintain the Golden Thread of Data and make this accessible in varying ways to a number of people, including but not limited to the tenants and the local fire brigade. In addition, the principal accountable person must manage and maintain numerous other requirements including a resident’s engagement strategy, safety case reports and mandatory occurrence reports.
For leaseholders living in HRBs the whole ethos of the Act is to afford them greater protection and safety measures. Certain leaseholders are now granted service charge caps for pre-existing fire and structural defects through the qualifying lease system which requires the leaseholder to complete a certificate establishing the qualifying nature of their lease and the landlord to issue a certificate to the leaseholder in return. These certificates have fast become a requirement when buying and selling flats in higher-risk buildings as the service charge cap protections attach to them.
Is the balance right?
The short review of the new regulations set out above is not intended to cover all areas, rather to demonstrate their wide-ranging nature. Safety and protection of people living in HRBs is at the core, but some have questioned whether the regulations go too far and instead disincentivise developers from building high rise residential schemes. Delays caused by the new gateways process are a huge consideration for both developers and funders. Couple this additional time and cost to a project with the requirements to engage new consultants (in the case of the new building regulations principal designer role), provide detailed electronic files of as-built information at handover and the soon to come Building Safety Levy and it begs the question why would anyone consider building high rise residential anymore?
The overarching intention of safety of the new regulations surely outweighs any headache or financial implications being incurred by developers and residential asset managers. The system has historically not been safe enough and sadly it took the terrible events of Grenfell to shake it up. Building regulations were not being adhered to and HRBs were being designed and constructed in dangerous ways. Therefore, whilst the new regulations may seem like they are introducing new hurdles, they are in fact ensuring that industries which had lost their way become once again compliant with necessary rules to ensure the safety of residents in their own homes.
