
Insight
The Building Safety Act 2022 (BSA) was introduced in response to the Grenfell tragedy and Dame Judith Hackitt’s subsequent review of Building Regulations and Fire Safety. But contrary to common thought, it isn’t just about cladding and its impact is far more reaching than to just tall buildings. As a result, we have seen the BSA’s impact across the wide range of practice areas that we offer to both businesses and individuals.
In this article, we break the key parts of the BSA (introduced to date) into three parts and give an indication of just some of the impacts the BSA is having and is likely to have, and why therefore why our clients need to be aware of it.
The BSA has introduced a wide set of changes which affect all buildings in England:
The controls and requirements introduced by the BSA are important to ensure building safety. However, this will likely come at a financial cost for any building owner who must ensure that they are compliant or else face criminal liabilities. Those associated with developers e.g. group companies, and company Directors need to be aware of their potential liabilities too. All of these changes also emphasise the importance of having carefully considered and drafted construction documentation which comprehensively addresses the new regulations and requirements introduced by the BSA.
“Relevant buildings’ are in most cases residential or mixed use buildings at least 11m tall or with five or more storeys.
The focus of the BSA in respect of relevant buildings is to limit the landlord’s ability to recover service charges for the cost of remedying “relevant defects”’ and shifting the costs burden from tenants to those considered capable of paying.
Relevant defects are generally defects that already existed in a building on 14 February 2022 which cause a risk of the spread of fire or collapse of the building.
If the landlord as at 14 February 2022, or someone associated with them (like a group company), was responsible for a relevant defect, the landlord may not be able to recover service charges for remedying the defect. Even if the landlord was not responsible as they acquired the building after a defect was carried out, their ability to recover service charge can be removed or capped.
The changes are likely to most impact landlords who own buildings constructed before 14 February 2022. If landlords are unable to recover remediation costs and must foot the bill themselves, this could impact the landlord’s solvency. Anyone associated with a landlord of a relevant building must also be aware of their potential liability for remedying defects.
The BSA introduced a fiendishly complex certification process to determine the level of service charge protection that a tenant qualifies for – unsurprisingly, this has added a layer of red tape to residential conveyancing transactions, which anyone involved in the sale of a lease should bear in mind. This certification process is likely to complicate matters even further for sellers who are acting as executors administering estates and therefore possibly with limited knowledge of the lease that they are selling. For landlords, the certification imposes a further administrative burden on them.
Higher-risk buildings, or ‘HRBs’ are residential or mixed use buildings at least 18 tall or with 7 or more storeys. HRBs are subject to the tightest regulatory regime. The new Building Safety Regulator (BSR) is part of Health and Safety Executive and is now the Building Control Authority for HRBs.
When building a new HRB or carrying out major work to an existing HRB, BSR approval must be obtained when obtaining planning permission, before starting work, and once work is complete before the HRB is occupied.
Any failure or a delay in obtaining approval from the BSR at one of the required points, may significantly impact any works involving a HRB. Development financing arrangements usually include specific “milestones”, and planning permission and prior approval consents usually contain specific timing conditions relating to commencement or completion of works – these timings are at risk if there is any delay in the BSR approval process. Each application to the BSR will also incur costs.
Once a new HRB can be occupied, and for existing occupied HRBs, there is a much tighter building safety regime – most of the obligations fall on the ‘accountable persons’ (people responsible for repairing the common parts) and the ‘principal accountable person’ (the person responsible for repairing the structure and exterior of the building). Principal accountable persons must register the HRB with the BSR, pull together the ‘golden thread’ of information about the building’s design and construction, and engage with residents and managing safety risks in the building.
Those involved with HRBs (which isn’t limited to the building owner) must be familiar with their new duties and responsibilities and that a failure to comply will be a criminal offence.
Whilst the changes brought about by the BSA appear complex and burdensome, we cannot forget the reason why the BSA was introduced and the recent update on the Grenfell tragedy inquiry emphasises the need to ensure building safety in the UK. If you would like to talk to one of our lawyers as to how the BSA may impact you, please contact Nicole Priestly or Guy Evans.