In depth

Building Safety Act: the main changes

Gateley Legal

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The Building Safety Act 2022 received Royal Assent in April and is now on the statute books. Some of the provisions are already live and there is a roadmap for implementation of the rest.

The drafting is not yet complete though, as Regulations are awaited which will give effect to some of the important provisions of the Act. Take a look at the transition road map which shows when different parts of the Act will come into effect.

In the meantime, here is an overview of each section to allow you to quickly understand the incoming changes and how they will affect your business.

Higher Risk Buildings

Part 4 creates a new regulatory regime for Higher Risk Buildings (HRBs) governed by a new regulator, the Building Safety Regulator (BSR).

The primary focus of the regime is to prevent the risk to the life and safety of the occupants of relevant buildings through the spread of fire, structural failures or any other prescribed matters (i.e. any other issues the regulator encounters and asks the secretary of state to include within the regime).

The Building Safety Regulator

The Building Safety Regulator (HSE for the time being) is the new regulator for Higher Risk Buildings (HRBs) and is given extensive powers to control, authorise and halt construction of HRBs.

The Building Safety Regulator will:

  • Oversee health & safety for all buildings;
  • Oversee the performance of all other building control bodies and building control approvers (previously known as approved inspectors); 
  • Advise on emerging risks and possible changes to the Building Regulations;
  • Assist and encourage competence among built environment industry and registered building inspectors;
  • Set Operational Standards Rules defining the minimum performance standards that building control bodies must meet;
  • Investigate breaches of operating standards by building control bodies; and
  • Prevent developers from appointing building control approvers who are too closely connected to the developer.

It will be an offence to obstruct or to impersonate an authorised officer of the BSR (S.22). It will also be an offence to provide false or misleading information to the BSR (S.23).

The BSR will also maintain a public register of HRBs, with new HRBs required to be registered before they can be legally occupied.  All new and existing HRBs must be registered by October 2023 and have a suitable Accountable Person appointed so ensure you have this date in mind!

The BSR has the power to issue compliance notices which will require an Accountable Person to take specified steps within a specified time period, similar to HSE improvement notices and prohibition notices.

Other bodies

A number of other bodies will feed into the work of the BSR, including:

  • The Building Advisory Committee – which will provide the BSR with general advice related to its functions;
  • The Committee on Industry Competence – which will be tasked with unifying the building control profession; and
  • The Residents’ Panel – which will comprise of residents of HRBs and must be consulted before the BSR issues or revises guidance on HRBs.

The Golden Thread of information

The Golden Thread will be a repository of information on the HRB which demonstrates its compliance with the regulations which will follow the BSA. It will be created at the outset of any HRB work and updated during the lifetime of the works to ensure that a detailed and accurate catalogue of the HRB’s compliance is available to the Accountable Person going forwards.

It will need to include a copy of the fire statement and a copy of the building control approval decision and must be submitted to the BSR through an online portal before building control approval will be granted.

Duty Holders

Duty Holders will be identified in the same way that they are under the CDM Regulations (i.e. principal designer and principal contractor). The regulations will require these duty holders to maintain the Golden Thread and they will be required to provide certificates at the end of the build process certifying that the building has been built in line with the documents contained in the Golden Thread.

If any of the key parties change during construction, such as the client, principal contractor or principal designer this must also be notified to the BSR.

The Accountable Person

The Accountable Person (AP) is either:

  • a person who holds a legal estate in possession in any part of the common parts; or
  • a person who holds a relevant repair obligation for any part of the common parts.

Where a freehold owner owns all of the common parts but the whole of the repair obligation is devolved to another entity through a long lease or to a RTM Company then the entity with the repair obligation will be the AP.

The AP's role is broadly analogous to the Responsible Person under the Regulatory Reform (Fire Safety) Order 2005 and will have primary responsibility for the fire safety of HRBs following practical completion, and will be required to apply for a Building Assurance Certificate from the regulator, which will be issued once the BSR is satisfied that the AP is undertaking its obligations properly.

The AP will be expected to have primary responsibility for compliance with all statutory obligations for the HRB going forwards including:

  1. Maintaining copies of certain prescribed documents (such as undertaking risk assessments regularly and diligently)
  2. Taking all reasonable steps to prevent a major incident from taking place
  3. Preparing a Safety Case Report recording the risk assessments undertaken and all steps taken to prevent major incidents
  4. The AP must provide a copy of the SCR to the BSR after it is prepared and again after it is revised, or on request

The AP will also become responsible for maintaining the Golden Thread and will be required to assess building safety risks on occupation or on becoming an AP. It must then make further assessments at regular intervals, when it suspects the current assessment is no longer valid or at the direction of the BSR. The AP is also under a continuing duty to manage existing building safety risks, either by preventing them from occurring or by reducing their impact if unavoidable as far as possible.

The Safety Case Report is prepared by the AP as soon as “reasonably practicable” after either (1) the HRB is occupied; or (2) the AP becomes an AP, containing its assessments of the building’s building safety risks and a “brief description” of any steps taken to mitigate those risks. The BSR must be notified when a new Safety Case Report is prepared.

Where the identity of an AP changes the BSR must be updated and all relevant information must be handed over to the new AP within a set timeframe. This process will be covered in subsequent regulations so the details are not yet available.

As well as the Accountable Person the BSA introduces the concept of the Principal Accountable Person (PAP). The Principal Accountable Person will have primary responsibility for the HRB and will be the AP with either the legal estate in possession or holds the relevant repair obligation for the relevant parts of the structure or exterior of a building (or if there is only one AP, that AP). AP’s are also under a duty to work together and cooperate with each other pursuant to S.109 of the BSA.

The Building Safety Manager

The previous iterations of the Building Safety Bill contained the concept of a Building Safety Manager, however, these have been removed from the final version with those roles now being taken on by the AP.

Mandatory Occurrence Reporting

Section 87 of the BSA requires the AP to report certain instances and occurrences to the BSR within a fixed timeframe and in a specific way.

Guidance on what occurrences will need to be reported, and how and when they need to be reported, is not yet available but it is expected that the AP must report certain structural and fire safety occurrences in a similar manner to schemes that exist in other industries, such as aviation. 

The BSR must be notified immediately upon the occurrence of an incident which falls within the mandatory occurrence reporting system. The notice should include:

  1. the date and time of the safety occurrence;
  2. the address of the site at which the occurrence happened;
  3. name and contact details of the principal duty holder making the report; and
  4. the type and details of the occurrence (including the nature of the risk).

The Residents’ Engagement Strategy

The PAP is responsible for preparing a Residents’ Engagement Strategy for promoting the participation of residents in building safety decision-making. They will also be required to review the strategy and amend it if necessary, as well as consulting with residents on certain decisions.

It isn’t clear exactly when the PAP will be required to consult residents but the BSA a requirement to consult when an AP makes a decision about the management of the building and in relation to decisions made in connection with the performance of the AP’s duties under Part 4 of the BSA.

The Residents’ Engagement Strategy must include the information which will be provided to inform about decisions relating to the management of the HRB, the parts of those decisions which will be open to consultation, the arrangements for taking account of those views and how the appropriateness of those measures will be kept under review. The Residents’ Engagement Strategy will also need to be circulated amongst all adult residents, the owners of each unit (where they aren’t also the resident) and other persons who may be prescribed in regulations.

Residents and owners my also request copies of the Residents’ Engagement Strategy and can complain to the BSR if those requests are not responded to appropriately.

Given that HRBs could include many types of residence including student halls it will be interesting to see how engagement might work in some of those places.

Residents’ duties

The BSA also creates obligations on residents and owners to maintain the safety of their own premises. These obligations include avoiding acting in ways which create a significant risk of a building safety risk materialising, interfering with safety items and complying with reasonable requests for information made by the AP.

If these duties are breached, the AP may issue a Contravention Notice, specifying the alleged contravention, the steps that person should take to remedy it, any actions that person should refrain from in the future and an explanation of the steps the AP will take if the notice is not complied with. The AP may also specify a fine the relevant person will be liable to pay which cannot exceed the cost of remedying the issues set out in the contravention notice.

The AP may also obtain access to individual apartments or other areas by serving notice on the resident and/or owner specifying the purpose of the request, an explanation of why access is necessary to achieve that purpose and a proposed reasonable time to obtain access (which must be at least 48h after the request is made).

Some of the BBQ balcony fires and fire loaded balconies should become a thing of the past.

The Gateways

The BSA and associated regulations introduce three “Gateways” – stop/go points at which regulatory compliance will need to be demonstrated before a high risk building is allowed to proceed.

Gateway 1: Occurs before duty holders are required to be in place. Requirements will be fulfilled by those applying for planning permission. Information needs to demonstrate that fire safety has been considered and incorporated at the early stage of proposals. This gateway has been in force since August 2021 and should be becoming more familiar.

Gateway 2: Occurs before construction when the duty holder provides a building control body with their full design intention. Construction cannot begin until the BSR is satisfied.

Gateway 3: Occurs at the completion/final certificate phase, where the building work has finished. The building control body assesses whether the work has been carried out in accordance with the building regulations.

The detail above covers some of the Building Safety Act and we will be taking a look at the litigation implications and the fire enforcement provisions in much more detail in the coming weeks so watch out for further updates.

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