Important changes introduced by the Building Safety Act 2022

26 May 2022

The Government’s flagship Building Safety Act 2022 came onto the statue books on 28 April 2022. It is intended to improve building safety following the Grenfell Tower disaster, and Dame Judith Hackitt’s subsequent ‘Independent Review of Building Regulations and Fire Safety’.

It covers a large range of issues. In this update, we have a brief look at some of the most important changes to the law, although many changes will not come into force for 12-18 months and some are not yet finalised.

The Defective Premises Act and limitation periods

One of the biggest changes is to widen the circumstances in which a claim for a defect that renders a dwelling unfit for habitation can be brought under the Defective Premises Act 1972 (DPA).

Previously claims could be brought against those who did the original building work to ‘provide’ a dwelling (e.g. building a new house or converting offices to flats, now known as section 1 claims).

Under the new law, construction claims can also be brought against those undertaking additional or remediation works to an existing building (section 2A claims).

The new Act extends the limitation period to 15 years for both section 1 claims and section 2A claims that accrue after the Act takes effect. For section 1 claims that accrued prior to the new Act, the limitation period is extended from 6 to 30 years.

This is a substantial increase in the period of liability. Claims that would have been time barred may now be actionable again. This is problematic where documents required to make or defend claims from so long ago may well have been destroyed.

In its evidence, the Construction Industry Council (CIC) objected to this change in strong terms: “These extensions and changes will have an effect that is far wider in scope than that needed to address the essential issue of fire safety of high risk buildings.”

The CIC noted that the DPA would apply to all dwellings (not only those that are high risk and/or high rise) and would apply to all defects that may render a dwelling unfit for habitation, not just defects related to fire risk. The CIC commented that construction firms may not be able to find insurance to cover this enhanced risk, adding to the issues that many construction companies already have with obtaining insurance.

New regulatory oversight

The new Act extends the powers of the Health and Safety Executive and creates new regulators who will have oversight of the way that buildings are constructed and managed.

  • The Building Safety Regulator (part of the Health and Safety Executive) will provide supervision of the new regime, and will have powers of enforcement and powers to issue penalties. It will be the building control authority in relation to higher-risk buildings in England, but it will also oversee the safety and performance of all buildings. It will have oversight of Accountable Persons who will be responsible for the storage and dissemination of safety related information in connection with high-risk buildings.
  • A Construction Products Regulator is being created that will have powers to remove dangerous products from the market.
  • A New Homes Ombudsman scheme will provide independent dispute resolution and redress for buyers of new build properties who have who have problems with their new home. The Government may make further legislation requiring all developers or certain developers to join the scheme, and may develop a standard of conduct and workmanship that developers must meet.

Cladding remediation and safety

One of the key purposes of the Act is to determine who is responsible for funding historical remedial works to high rise buildings:

  • In cases where the owner of the building is (or is linked to) the developer of the building, or where the owner’s net worth is at least £2,000,000 for each affected building, the owner is not permitted to pass the costs of remediation down to the leaseholder.
  • If the value of a lease is below a certain value, the leaseholder is not required to contribute.
  • In other cases, the maximum that a leaseholder may contribute is £15,000 in Greater London, or £10,000 elsewhere. There is a separate maximum for high-value leases.

A new cause of action is being introduced that allows claims to be brought against construction product manufacturers and sellers. It applies if a product has been mis-sold, is found to be inherently defective or if there has been a breach of existing construction product regulations.

If this contributes to or causes a dwelling to become ‘unfit for habitation’, then a civil claim will be able to be brought through the courts. While it will apply to all construction products in the future, cladding products are treated differently as they are subject to a 30-year limitation period which applies retrospectively.

Further legislation is still required

While the new Building Safety Act has come into force, many of its key changes require the Government to pass further laws to properly set out the detail of those changes.

These laws are still being considered and are not due to be made for a further 12 to 18 months. The Government has issued a ‘road map’ of the changes and when they will come into force, which can be found here.

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