Building Safety Act 2022: important provisions brought into force in 2022, but much help still needed

The Building Safety Act 2022 (“the Act”) received Royal Assent on 28 April 2022 on the basis that most of its provisions would come into force through a series of commencement regulations over a 12-18 month period.

The first of these commencement regulations was The Building Safety Act 2022 (Commencement No 1) Regulations 2022, implemented on the 19 May 2022, which introduced ground-breaking regulations, summarised by Edwin Coe here. These introduced significant new legislation to place homeowners living in unsafe buildings, in particular blocks of flats, in a better position in relation to (1) pursing landlords and developers for the necessary remedial work, (2) financial contributions for the cost of works to correct building defects and (3) limiting the extent of contributions by some leaseholders.

This was followed by The Building Safety Act 2022 (Commencement No.2) Regulations 2022, brought in on 1 September 2022, which:

1. enables the Government to introduce new Building Industry Scheme(s) under s.126-127 of the Act as a means of creating regulations requiring those involved in the design, construction, management and maintenance of buildings and in the supply of construction products to sign up to a scheme obliging compliance with that scheme’s conditions. The idea is that those signing up are to qualify as “responsible actors” with members of a scheme being required to secure the safety of people in or about buildings and improve the standard of buildings. Although many details remain subject to further regulation, some noteworthy “membership conditions”, include the requirement to remedy defects in buildings, the making of financial contributions towards remedying defects and helping to ensure the competence or conduct of any individual connected with a scheme member. The aim is for these schemes to (i) result in greater and more timely financial contributions towards remedial works, (ii) lead to higher and more consistent standards in the building industry, and (iii) root out “bad apples” unwilling to do their bit, in particular in resolving the cladding crisis; and
2. empowers the Government under s.128-129 of the Act to make regulations prohibiting those involved in the construction process from adopting unsafe or unacceptable practices by preventing them from obtaining building control approval. As well as applying to members of a Building Industry Scheme, building control prohibitions may also be imposed on those eligible to join, but who fail to join, any Building Industry Scheme. The threat of being unable to obtain building control approval or the granting of a final certificate should serve as a real incentive to encourage better practice and for a high take up in Building Industry Scheme membership. Much of the detail in relation to Building Industry Schemes and prohibitions is yet to be revealed.

The latest set of commencement regulations is The Building Safety Act 2022 (Commencement No.3 and Transitional Provision) Regulations 2022, which brought further provisions of the Act into force on 1 December 2022, including:

1. the introduction of a Building Safety Regulator (“the Regulator”), as part of the Health and Safety Executive, to provide assistance and encouragement with the aim of securing the safety of those in and around higher-risk buildings (defined as buildings at least 18 metres or 7 storeys high and containing at least 2 residential units). These provisions represent a new duty to facilitate building safety and to improve and monitor the safety of higher-risk buildings; and
2. the Regulator is to establish three separate committees, with two of these coming into force under the latest regulations: the Building Advisory Committee and the Residents’ Panel. Both are to operate to give information and/or advice to the Regulator to assist in securing the safety/improving the standard of buildings. The Residents’ Panel is to consist of residents and owners of higher-risk buildings, as well as relevant representative bodies which have a specific focus on higher-risk buildings. This reflects the Government’s intention to put residents at the forefront of the new regime and to ensure the Regulator understands the issues on the ground.

On 30 November 2022 the Government also launched the medium-rise scheme (“MRS”) as a pilot, explained by Brenna Baye, our Building Safety Fund expert here, aimed at rectifying unsafe external wall systems on medium-rise, 11-18m high buildings.

Residents should to some extent take heart from the various initiatives being introduced with the stated purpose of improving the safety of buildings. However, not only is the implementation of the Act far from complete, but it also remains to be seen how it will unfold in practice.

Many homeowners remain trapped in unsafe buildings requiring significant remedial works where there is no immediate prospect of being able to sell or re-mortgage. More needs to be done to require those responsible to pay for urgent remedial work, in particular where buildings of all heights are unsafe and regardless of whether there are cladding issues. Although the Building Industry Schemes may encourage better practices going forward, it is unclear what real assistance is available to homeowners currently faced with serious defects but no means to pay for them. This applies to homeowners who have bought new build houses as well as those living in flats, but there are also particular logistical challenges for leaseholder owned buildings where those charged with resolving the issues are volunteers with no experience of rectifying serious building defects and pursuing those responsible.

Those involved in the design and construction of buildings and new build insurers remain resistant to correcting unsafe and often shoddy work, leaving many with litigation as the only option for seeking redress. No matter how clear and obvious the defects, such litigation is usually met by delaying tactics including the refusal to provide vital information about the construction of the building, whilst deliberately running up excessive costs, all calculated to wear down homeowners to give up or take less than they should, to then be left with the difficult task of working out which of the urgent work they can afford to undertake. Meanwhile, those responsible continue to build elsewhere with new purchasers unaware of the history, not least as those with afflicted properties often avoid publicity which may result in property blight.

The Levelling-Up, Housing and Communities Committee has announced that it will be examining gaps identified in the Building Safety Act in the New Year. It is likely the Committee will be exploring questions around funding for non-cladding building safety works, so further developments are awaited with much interest.

Should you have any queries in relation to the Act, or indeed if you have any questions regarding unsafe buildings and remediation works, please do not hesitate to contact Joanna Osborne, or any member of the Edwin Coe Property and Trusts Litigation Team.

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