The Building Safety Act is now English law

05 May 2022

The landmark Building Safety Act received Royal Assent and became law in England last week. Five years in the making, the 262-page act creates a new safety regime for the construction of residential buildings although the majority of its provisions will not come into effect for another 12 to 18 months, requiring secondary legislation.

Central to the new design regime will be a new Building Safety Regulator within the Health & Safety Executive. The regulator will have to approve higher risk residential projects over 18m at the planning application stage and at initial building control stage.

Designs for such projects will need to be submitted to the new regulator at ‘gateway’ points. The regulator will have the power to freeze projects if safety is compromised. The RIBA has previously published detailed information about the planning gateways and how they operate.

Architects acting as Principal Designer will be expected to be responsible for a ‘golden thread’ of information: effectively, to maintain an account of how the building has been designed and how design decisions were taken relating to fire and structural safety.

Another of the act’s many provisions requires a New Homes Ombudsman to be set up for new homes, essentially to resolve complaints over defects from home buyers.

A small number of the act’s provisions will come into force automatically two months from now. Among these, the following provisions will be of particular interest to architects.

Leaseholder protection from remedial costs

The act establishes that landlords and/or developers – not leaseholders – are liable for costs associated with historical building safety defects. Leaseholders benefiting from this protection are defined as those living in their own homes or with up to three UK properties in total in medium and high rise buildings.

Last month, the government announced a deal with housing developers in which they committed a minimum of £2 billion for remedial works. Over 35 of the UK’s biggest homebuilders have so far pledged to remediate all buildings 11 metres or taller that they have played a role in developing in the last 30 years.

Housebuilders will also pay up to £3 billion to an extended Building Safety Levy that will be chargeable on all new residential buildings in England. The money will ensure that leaseholders are spared remedial costs even when developers cannot be traced. The government has said it will block housebuilders from gaining planning permission or building control approval if they refuse to pay into the levy fund.

Retrospective liability is extended to 30 years

The act amends the Defective Premises Act (DPA) so that it covers refurbishment and other works in addition to new dwellings, and extends the time period for compensation claims for retrospective work from six years to 30 years.

Twelve months ago, the proposal was to extend to 15 years, but an amendment to the bill doubled this. The DPA applies to design, workmanship, or use of materials said to render a dwelling unfit for habitation.

For new work, the claims period will be extended to 15 years, so architects will now have to ensure they keep all project records accordingly.

The RIBA and CIC have already expressed serious concern over a potential unintended consequence of the extended liability periods, namely the impact on the professional indemnity insurance (PII) market.

Further information can be read in a previously published RIBA feature on the likely effects of changes to the Defective Premises Act.

A new regulator for construction product safety

A National Regulator for Construction Products (NRCR) will be established within the existing Office for Product Safety and Standards (OPSS). The regulator will have powers to withdraw unsafe products from the market and issue penalties against suppliers or manufacturers who fail to meet compliance rules on information.

Any supplier of a construction product that is inherently defective or marketed on the basis of misleading statements will become liable to pay damages to people with a relevant interest in the buildings affected.

This will extend to any person suffering economic loss, which suggests that architects will be able to seek redress against manufacturers/suppliers where they are facing action themselves over building failures stemming from the use of such products.

Actions can be started within 15 years of the act coming into force. In the case of cladding products, liability will extend to 30 years prior to the act coming into force, and 15 years from the Act being introduced.

The ARB will monitor competence

The act gives the ARB new powers to monitor the training and development of architects throughout their careers in order to maintain competence. It will be able to strike off architects who do not meet the required standard of competence. Previously the Architects Act 1997 only gave the ARB powers to prescribe entry requirements to the register.

The ARB is planning to introduce its own scheme for monitoring continuing professional development (CPD). In its latest policy statement on regulation of architects, the RIBA has expressed concern that the ARB’s proposals for monitoring CPD will result in a prescriptive parallel system to the RIBA’s own CPD requirements.

The act does instruct the ARB to consult with the RIBA prior to prescribing the practical experience or training required to demonstrate competence. The RIBA’s policy statement suggested that the ARB could avoid duplication by certifying the RIBA CPD scheme as compliant with its requirements.

The RIBA currently offers on-demand digital CPD on the Building Safety Bill and next steps for architects by Paul Bussey, Senior Technical Consultant at AHMM. It is available now from RIBA Academy.

Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas.

RIBA Core Curriculum topic: Legal, regulatory and statutory compliance.

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