The Building Safety Bill reaches the final stages

Published 7 abril 2022

The Building Safety Bill (the “Bill”) completed all stages in the House of Lords on 4^th April and will return to the House of Commons with amendments for debate. There is pressure on the government to finalise the legislation.

In March 2022, the government tabled multiple amendments to the Bill, reflecting its intention that liability sits first with developers, freeholders and landlords, and that there are stronger tools to pursue those who are responsible for issues. Developers who fail to comply with the proposals may be prevented from having access to the planning system and to building control approval.

The wide-ranging amendments include:

• Protection for qualifying leaseholders who will not have to pay for building safety remediation costs. This will apply to all buildings that contain at least 2 dwellings. The previous height restriction (11m) has been removed.

• New powers for the First-tier Tribunal to make Remediation orders to compel landlords to carry out remediation works on the application of leaseholders and others.

• Remediation Contribution Orders to be made against a developer, partnerships and limited liability partnerships and former landlords where it is “just and equitable” to do so.

• A new power for the High Court to make ‘building liability orders’.

• A new cause of action to enable claims against parties responsible for failures in relation to construction and cladding products, including manufacturers. This carries a potential retroactive limitation period of 30 years from when the building or works were complete.

• Removing the statutory requirement for Approved Inspectors to hold insurance through a Government-approved scheme, to allow greater flexibility.

• Developers must provide a warranty of 15 years minimum as standard for new build homes. Regulations will stipulate what these will cover.

• The Building Safety Regulator will have some oversight of building control bodies.

Scrapping the Building Safety Manager

The government has removed the legal requirement for building owners to appoint a Building Safety Manager (“BSM”). The BSM was previously considered to be a relatively central figure within the new regime and the “Golden Thread” concept, with a requirement for the Accountable Person (usually the building owner, or managing agent) for a higher-risk building to ensure that a BSM was appointed prior to it becoming occupied. There were also specified competency requirements. With the removal of the BSM role, the Accountable Person will have the day-to-day responsibility for managing the safety of a higher risk building. Further guidance for Accountable Persons will be provided by the Building Safety Regulator, to understand how to manage this additional responsibility. This may involve upskilling existing staff or hiring competent building safety managers. 

The government has also scrapped the proposed building safety charge. Instead the government proposes amending the Landlord and Tenant Act to include the cost of taking building safety measures in the service charge. There have also been amendments to the proposed building safety schemes and building safety levy that appear to lay the foundations for action to be taken against those in the industry who do not commit to the government’s proposals

We are monitoring the Bill as it progresses through parliament and will be publishing regular updates.

DAC Beachcroft has a range of specialist teams which can advise on all legal issues arising out of the Bill including contractual disputes; criminal investigations by the Building Safety Regulator; drafting development agreements, collaboration agreements, build contracts and supply chain contracts; and advising on the defence of claims for damages as a result of potential breaches of professional duties.