The various provisions of the Building Safety Act 2022 continue to be implemented and come into force. Whilst there has already been a significant volume of commentary and analysis regarding the genesis of the Act, and the various additional duties created, what impact will the Act actually have on a day-to-day basis for those who undertake work on, and are responsible for, the management and operation of the built environment?
Who is caught by the Act?
The Act is of relevance to all those involved in the entire lifespan of buildings, from design and planning through to construction and ongoing occupation, with a particular emphasis on those involved in the management of buildings which are deemed to be ‘higher risk’ (being over 18m in height and which contain at least two residential units).
One of the key criticisms flowing from the independent review which was undertaken following the Grenfell Tower tragedy was that there was generally no accountability or continuity of oversight relating to the built environment. The review’s impression was that the existing duties were seen as a ‘race to the bottom’, with those responsible for each stage of a building’s lifespan operating in a silo and without reference to those who may be involved at later stages of a building’s management.
The Building Safety Act seeks to do away with this attitude and creates what is referred to as a golden thread of information, which persists throughout a building’s lifetime, to ensure that crucial information is preserved and accessible to those who require it. Contractors will need to be proactive in this regard, and will be expected to positively contribute to this core repository.
Central to the Act’s objectives is the creation of the new statutory role of ‘accountable person,’ which, in a nutshell, will attach to those who are in any way responsible for the management of building safety risks. In practical terms this means that those who are responsible for the repair and ongoing safety in higher risk properties will be fixed with additional duties. Whilst many of the obligations are perhaps a matter of common sense and may duplicate existing best practice, the Act now places these on a statutory footing, with consequences for non-compliance.
What does this mean in practice?
The nature of regulatory compliance is that it only ever tends to increase in volume and the Building Safety Act is no exception in this regard.
Once fully embedded, the Act is likely to lead to:
- Increased administrative burden
There will be an increase in the administrative burden by those involved with the management of higher risk buildings, especially those who are deemed to be an accountable person (‘AP’).
For example, an AP, or where there is more than one AP in respect of a building, the Principal AP, must:
- ensure that a building caught by the Act is appropriately registered with the Building Safety Regulator before it is occupied
- assess the safety risks and provision in respect of the parts of the building for which they are responsible, both on occupation and at regular intervals thereafter, as well as at any time when there is reason to suspect that the existing assessment is no longer valid.
- take reasonable steps to prevent a safety risk from materialising and reduce the severity of any incident resulting from such a risk
- apply for a Building Assessment Certificate for a registered building within 28 days of being asked to do so by the Building Safety Regulator
- prepare of a safety case report for their building
- report certain information about building safety risks in occupied high risk buildings to the Building Safety Regulator; and
- prepare a strategy for promoting the participation of residents in building safety decisions.
Whilst these duties are not in themselves novel, in that they mirror similar obligations under existing health and safety and fire safety legislation, their discharge is now compulsory in respect of building safety management.
An initial impact assessment undertaken prior to enactment of the Act estimated that costs associated with the additional management duties may be in the region of nearly £3 billion over the first decade, with estimated annual costs associated with maintenance of the Golden Thread being in the region of £600 million.
- Emphasis on cooperation
Effective implementation of the Building Safety Act will require significant cooperation and coordination between those involved in building safety.
For example, one area where there is likely to be overlap is in respect of fire safety. Definitions as to whom the relevant duties attach differ slightly between the Act and Fire Safety Order, and in practice the roles may be undertaken by the same or distinct persons. In any event there needs to be a clear delineation and understanding between all parties as to who is responsible for which aspects of a building’s occupation and how information will be shared between them.
The duties imposed by the Fire Safety Order have themselves been expanded, with external walls and fire doors to individual flats now being included within the definition of communal areas, and thereby falling within the responsibility of the Responsible Person to include in the building’s fire risk assessment.
- Contractual implications
Given all of the above, and the importance of the objectives to be achieved, it is crucial that the new prescriptive regime is adequately reflected within contractual documentation. For example, those who work on buildings but who may not be the AP, should revisit their contractual documentation to ensure that it is compliant with the new statutory apportionment of responsibilities. Parties need to be mindful that they do not inadvertently, by their contractual terms or actions generally, assume responsibility.
It may also be prudent for those involved in the maintenance of higher risk buildings to include express confirmation that any works undertaken will not affect building safety or emergency plans.
Pending the introduction of updated standard form contracts, all contractors should seek express and unambiguous clarification as to how the Act will impact their work, and clear understanding as to apportionment of relevant responsibility.
Such apportionment of roles is not novel in itself, and has been required for many years as a result of the Construction (Design and Management) Regulations, but clear delineation of roles will help all to understand the scope and extent of their responsibilities and how these contribute to the overall objectives to be achieved. Unlike those Regulations, however, the new golden thread requires much more information to be provided, with the emphasis on recording and sharing that information rather than simply maintaining a hard copy.
- Delays
Whilst ensuring continuity of knowledge and safety, the Act is liable to result in delays to construction projects, whilst relevant approvals and registrations are awaited. In the event of any such delay, or rejection of approval, parties will need to make provision as to who is liable for any consequential costs, cash flow issues and supply chain issues.
- Construction products
The Act intends that all construction products made available on the UK market should be regulated, and the Building Safety Regulator has extensive powers in this regard, including to require construction products to be safe and to create a statutory list of ‘safety critical’ construction products.
The Act also introduces new liabilities on materials producers for defective products, which will operate in addition to existing product safety regimes.
All those involved in the supply and use of construction products will need to be mindful of any relevant decisions or categorisations of products, and take steps to ensure that any products falling foul are not used on site.
Enforcement
All of the above obligations, duties and requirements are to be overseen by the Building Safety Regulator, which has been endowed with criminal investigatory and enforcement powers in the event of breach by a dutyholder.
It has been estimated that the costs of enforcement could be in excess of £12 million, with costs associated with reviews and appeals serving to increase that figure.
There has been significant criticism of the Building Safety Regulator to date and whether it becomes a Regulator with real teeth or not remains to be seen.
Conclusion
Whilst the maintenance and promotion of building safety is to be welcomed, all those who are involved in the design, construction, management or maintenance of the built environment must understand their specific role, and by extension what additional responsibilities they may have.
Although there has been criticism as to the length of time it has taken the Building Safety Act to come fully into force since the Grenfell Tower fire in 2017, and residual questions remain as to how the additional funding will be sourced, the direction of travel is clear and businesses need to be alive to how they will be impacted and the practical consequences for them.