The implementation of the Building Safety Act 2022 will have a major impact on clients, designers, specifiers, contractors and product manufacturers & distributors.

Big changes ahead – What does the Building Safety Act mean for the construction industry?

The implementation of the Building Safety Act 2022 will have a major impact on clients, designers, specifiers, contractors and product manufacturers & distributors. This short article summarises the background to the Act and some of the most important changes it will introduce

What is the Building Safety Act?

The Building Safety Act (BSA / the Act) received Royal Assent on 28 April 2022 It introduces wide ranging changes to the legal and regulatory framework governing the management of building safety during design, construction and occupation. Some of its provisions apply to all projects but it also creates a new and much more stringent regulatory framework for higher-risk residential buildings.

The Act comes five years after the Grenfell Tower tragedy exposed the fatal shortcomings of many construction industry practices and four years after Dame Judith Hackitt’s subsequent Review of Building Regulations and Fire Safety.

Competency and information sharing

The Act gives authorities new powers to set competence requirements for the main duty holders identified by the Construction Design and Management (CDM) Regulations, namely Principal Designer, Principal Contractor, Designer and Contractor. These competency requirements will apply to all categories of projects but will be more stringent for the regime covering higher risk buildings. Clients will also be required to sign a formal declaration that they are satisfied that the duty holders carrying out work on their behalf are competent. Changes to the Building Regulations will also extend the requirements for dutyholders to co-operate, share information and ensure that work complies with the Building Regulations.

Construction Products

Historically construction products have been by covered by EU product regulations only where an EU harmonised standard applied. This regime transferred largely unchanged into UK law following Britain’s exit from the Union.

Controls will now be extended to all construction products and new powers have been created to regulate safety critical products, underpinned by a wider requirement on manufacturers to ensure all construction products are safe.

A new cause of action will allow claims to be made against product manufacturers and suppliers where a product can be shown to have been mis-sold, is found to be inherently defective or if there has been any breach of construction product regulations. In cases where this leaves a dwelling unfit for habitation, civil claims can be made through the courts – with a 30-year limitation period for cladding products, and a proposed 15-year period for other products.

The management of the new regime will be taken out of the hands of local trading standards officers and passed to new National Regulator for Construction Products within the Office for Product Safety and Standards.

New Regime for Higher-Risk Buildings

The Grenfell Tower tragedy showed that the existing arrangements for the management of safety of higher-risk buildings (HRBs) are not adequate. The Act creates a new regulatory framework covering the design, construction and occupation of these buildings, overseen by a new Building Safety Regulator (BSR) within the Health and Safety Executive (HSE).

Which buildings and risks are covered

The new regime covers fire and structural integrity risks in HRBs and contains provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings. HRBs are defined as being at least 18 metres high or having at least 7 storeys. In each case they must have at least 2 residential units.

The reach of the regime will thus go beyond high-rise residential blocks such as Grenfell Tower to embrace other residential buildings such as student accommodation. Some other forms of residential accommodation such as hospitals and care homes are expected to be included in the provisions that relate to the design and construction phase but will continue to be subject to their existing regulatory regimes during their occupation.

It is worth noting that the Act leaves it open to the Secretary of State to extend the regime to other types of buildings and risks and that the duties set out for the occupation phase apply to existing, and new HRBs.

The Golden Thread of Building Information

A central plank of the new regime is the obligation on duty holders (accountable persons, clients, principal designer, principal contractor, designer and contractor) to maintain a golden thread of asset information that ensures, “the right people have the right information at the right time”.

The golden thread must be maintained in a digital format and capture key information about the buildings design, safety and management.

Accountable Persons and Safety Cases

In the occupation phase, the key duty holder will be the Accountable Person. This is essentially the named individual with ultimate responsibility for the structure, exterior and common parts of the building. In practice this will normally be a freeholder, landlord or a management company. In cases where there is more than one Accountable Person, the individual with responsibility for the structure and exterior of the building becomes the Accountable Person.

A vital role for the Accountable Persons is the creation and maintainance of the building’s Safety Case. This document needs to demonstrate that risks have been identified and assessed and a credible and up to date plan is in place to reduce or control them to an appropriate level.

Gateways to Approval

The Act introduces three gateways at which building safety must be demonstrated before a project can proceed. Some of the main features of each gateway are summarised below.

Gateway One: Planning Application (in force since August 2021)

Information on building safety must be included in a planning application through a new Fire Statement

BSR is a statutory consultee

Gateway Two: Commencement of Construction

Key Information submitted to the Building Safety Regulator. Construction cannot begin until the BSR is content that the design meets building regulations

Payment of the Building Safety Levy to support costs of improving safety

Gateway Three: Completion

BSR must asset the building to determine that works conforms with building regulations – and issue a completion certificate when satisfied. No occupation must take place before the certificate is issued

Client, Principal Designer and Principal Contractor must also confirm that building complies with the Building Regulations

Mandatory Occurrence Reporting

Duty holders will have an obligation to maintain a Mandatory Occurrence Reporting system and report the occurrence of any risks that if not dealt with are likely to lead to death or serious injury to significant numbers of people. The requirements go further than the existing obligations under the CDM regulations which concentrate largely on managing health & safety of the construction process. The new regime extends duty holders responsibilities to include the safety of the resulting built structure.

Voluntary Reporting – a learning industry

To complement Mandatory Occurrence Reporting, the Act provides for the introduction of a voluntary reporting system. It is expected that this will be provided within the existing CROSS scheme (www.cross-safety.org). Reports are anonymised and this provides a way to help everyone learn from near misses and unsafe conditions wherever they occur in the industry.

Timelines

The provisions of the Act are expected to be introduced over a period of around 18 months from the date of Royal Assent (28 April 2022).  This will require a raft of regulations and secondary legislation to be consulted upon and introduced. This process has already begun with a consultation on the Higher Risk Building (Descriptions and Supplementary Provisions) Regulations closing earlier this summer (July 2022).  Consultations are currently open (until 12 October 2022) on implementing the building control regime for higher risk buildings & wider changes to building regulations for all building and the new safety regime for occupied higher risk buildings.

As with any new regime the devil will be in the detail and BBA will keep all our clients and stakeholders updated on any important changes.