Building Safety Act 2022 – Are you compliant?
Most aspects of the Building Safety Act 2022 (“BSA”) came into force on 1st October 2023. It is the foundation of a new building safety regime for the construction sector.
Background
The BSA was introduced following an independent review of Building Regulations and fire safety undertaken by Dame Judith Hackitt in response to the fire at Grenfell Tower on 14th June 2017. The final report was issued in May 2018, after which the government launched its Building a Safer Future policy in December 2018.
The BSA was introduced to Parliament as a Bill on 5 July 2021. The government stated that the Bill would “create lasting generational change and set out a clear pathway for the future on how residential buildings should be constructed and maintained”.
The BSA is a lengthy piece of legislation, consisting of 6 parts and 11 schedules, and is accompanied by a raft of secondary legislation. This article therefore simply highlights some of the main changes introduced by the BSA in England.
Key changes:
- The BSA creates a Building Safety Regulator (“BSR”) (in effect, the HSE) to oversee the safety and standards of all buildings. The BSR can enforce obligations under the BSA, either by using existing powers under the Building Act 1984 or by exercising new powers to prosecute offences under the BSA. This can include issuing a compliance notice or a stop notice.
- Changes to the regime governing building control professionals.
- The BSR will act as building control for higher-risk buildings.
- A new regulatory regime is introduced in respect of “higher-risk buildings”, both during the design and construction phase and when such buildings are occupied.
What is a higher-risk building?
- During design and construction, a building is defined as a higher-risk building if it is:
- at least 18 metres in height or has at least 7 storeys; and
- Contains at least two residential units; or
- Is a care home; or
- Is a hospital.
Secure residential institutions, hotels and military barracks and living accommodation for military personnel are expressly excluded from this definition.
- During occupation, a building is defined as a higher-risk building if it is:
- at least 18 metres in height or has at least 7 storeys; and
- contains at least two residential units.
Care homes, hospitals, secure residential institutions, hotels and military barracks and living accommodation for military personnel are expressly excluded from this definition.
Buildings during Design and Construction
- The new regulatory regime places legal responsibilities on those who commission building work and participate in the design and construction process (known as dutyholders).
- A new “gateways regime” is introduced for higher-risk buildings. A series of three “gateway points” is introduced and at each point dutyholders must demonstrate to the BSR that, among other things, they can properly account for the safety of the completed building. Each “gateway” must be passed through in order to gain permission to move onto the next phase of work and, ultimately, to allow the building’s occupation.
- The three gateways are:
- The planning stage
- Before construction work begins
- Completion of construction
- Dutyholders are required to provide the “golden thread of information” for higher-risk buildings and keep that information up to date.
- A Building Safety Levy is introduced when a developer seeks permission to develop certain buildings.
Higher-risk buildings during occupation
- Once a higher-risk building is occupied, an “accountable person” is responsible for the statutory obligations imposed by the BSA.
- The principal accountable person must ensure that the building is registered with the BSR before the building is occupied. It is an offence for a building to be occupied but not registered. This requirement came into force on 1 October 2023, so existing occupied higher-risk buildings should have been registered by 30 September 2023.
- To register a building, the principal accountable person (or someone authorised by them) should use the online service provided by the HSE.
- The principal accountable person must apply for a building assessment certificate for a registered building within 28 days of being requested to do so by the BSR. It is an offence not to make the application without a reasonable excuse.
- Each accountable person must assess and manage the building safety risks for the part of the building for which they are responsible. This is an ongoing duty.
- The principal accountable person must prepare a safety case report for the building. This must include information from all of the accountable persons and will be the main way that the BSR will check that the accountable persons are fulfilling their duties.
- The safety case report should contain the assessment of the building safety risks made and a brief description of the steps taken to manage those risks, with an explanation of why those measures were chosen.
- The safety case report should be revised, if the principal accountable person considers it necessary or appropriate to do so, whenever a new assessment is made or further steps are taken. When a person becomes the principal accountable person for a building, they will be required to prepare a new safety case report.
- As soon as reasonably practicable after preparing or revising a safety case report, the principal accountable person must notify the BSR and provide a copy if the BSR requires one. The notification must give an overview of the main revisions and an explanation of why the revisions have been made.
Conclusion
As can be seen, the provisions of the BSA are varied and wide-reaching, imposing a wide range of duties on developers, building owners and occupiers of higher-risk buildings. Penalties for non-compliance can be significant, so it is important to ensure that you are aware of your obligations and take further advice if you are unsure.
The construction team at Rogers & Norton are already receiving instructions relating to matters involving the BSA. If you would like further advice on your responsibilities, please contact a member of our construction team.
Rogers & Norton’s specialist Construction Team is hosting a Construction and Property Update on Tuesday 12th December from 12.30pm – 2.15pm, providing an essential review of recent developments in the sector.
Aimed at developers, employers, contractors, landlords, architects, surveyors, suppliers and those providing professional services to the construction and property sector, this seminar will provide an up-to-date legal overview, with the opportunity to network with likeminded professionals over a light buffet lunch.
Click here for more information, or contact Louis Hilldrup-Boorman by emailing lhb@rogers-norton.co.uk to book your place.