Contributors
With the Building Safety Act 2022 spanning over 260 pages, getting to grips with the detail of it and what you need to focus on first is a mammoth task.
However, the first wave of sweeping changes is on 28 June 2022, a mere two months after the Building Safety Act (BSA) received Royal Assent, and you need to be aware of these now.
The key changes on this date are:
1. The Defective Premises Act 1972 (DPA)
There is an extension of limitation periods in the DPA (i.e the period of time in which someone can bring a claim), as well as a new right to claim:
- the s1 DPA limitation period is significantly extended – it used to be six years, but now it's 30 years retrospectively (going backwards) and 15 years prospectively (going forward)
- a new s2A DPA comes into force, with a new claim possible now relating to "fitness for habitation" (like the s1 claim), with a limitation period of 15 years prospectively.
If you want more information on what these sections of the DPA are about, we've put this in a table below for you.
2. The Building Act 1984 (BA)
S38 BA, relating to breach of the Building Regulations, is not yet in force. Notwithstanding this, the BSA has also extended its limitation period to be 15 years prospectively. Again, for more information, see our table below.
Part 3 of the BSA also inserts a new definition of “higher-risk building” into the BA. This is the definition set out in the BSA of (broadly) residential buildings which are over 18m or seven storeys in height. The government is currently consulting on precisely which buildings do and don't fall within this overall description.
3. Building Liability Orders (BLO)
BLOs are introduced by sections 130 to 132 of the BSA. Under these, a Court can make one business's liability the liability of an associated business.
This sounds complicated, so here's a broad example. Sometimes developers use a special purpose vehicle (SPV), a specially set up company, to construct a particular project. They do this to ringfence the developer's risk. This means that someone trying to bring a claim (under either s1 or the new s2A of the DPA, (or s38 of the BA when it comes into force) or any other claim resulting from a "building safety risk") may find they can't bring that claim because the SPV no longer exists (as the developer no longer needed it once the project was built). However, now the Court can make a BLO so that the SPV's liability becomes the liability of one of the SPV's other associated companies. This would mean the person can bring their claim against that associated company instead, and the developer cannot avoid liability.
4. The Building Safety Regulator (BSR)
The BSR is put onto a statutory footing. It has already been set up within the Health and Safety Executive, and its roles will include:
- overseeing the safety and standards of all buildings
- helping and encouraging the built environment industry and building control professionals to improve their competence
- leading implementation of the new regulatory framework for high-rise buildings.
5. New causes of action against construction product manufacturers
New rights against construction product manufacturers are being introduced, again with extended limitation periods.
Essentially, these mean that where construction products cause a building to be unfit for habitation, the manufacturer of those products may be liable to pay damages for personal injury, damage to property or economic loss (i.e. financial loss). In addition these manufacturers may have to make a "costs contribution" towards the costs of remedial work.
The limitation period for these actions will be 15 years - except for where those construction products relate to defective cladding, in which case a 30 year retrospective limitation period will apply.
BSA at a glance
We know that some of this information is difficult to digest, so we have set out the DPA and BA changes in a table below.
|
Statutory right |
Did it exist before the BSA? |
BSA changes on 28 June |
|---|---|---|
|
s1 DPA |
Yes, a right for a building owner or existing leaseholder to bring a claim based on "fitness for habitation" against the original builder for the original build or substantial refurbishment of the building |
The limitation period is increasing from six years to 30 years, retrospectively and 15 years prospectively |
|
s2A DPA |
No |
A new right for a building owner or existing leaseholder to bring a claim based on "fitness for habitation" against a builder for subsequent building works to a building. The limitation period will be 15 years, prospectively |
|
s38 BA |
Yes, but never in force before. A right to bring a claim by anyone for damage (including physical and mental damage) suffered due to misapplication or failure to apply the relevant Building Regulations to building works |
s38 BA is still not yet in force, but the BSA has nevertheless introduced an extended limitation period of 15 years, prospectively. Note that this applies to all buildings, not just residential buildings. |
For more information and helpful materials visit our Building Safety Hub or contact us.
“The new Building Safety Act will change the way the industry operates going forward to ensure the safety of occupants. The government has taken serious steps to redress the balance between the industry and the public; we rarely see such wide reaching legislation with retrospective effect. It will be interesting to see how claims are brought in relation to issues arising in very old projects but the decision to include Building Liability Orders which pierce the corporate veil has a lot of businesses now looking to resolve issues they may have thought previously that they could walk away from. Ultimately those who build correctly and safely have nothing to fear from the new legislation but it will undoubtedly increase costs for an industry already struggling with the effects of Brexit, COVID-19 and inflation and is likely to also therefore affect the government’s target for building new homes.”
Charissa Shears, Legal Director, Bouygues
"It is good to see the legislation make its way through Parliament but disappointing that it has taken five years. Even more disappointing is that little has changed across the industry. I still see the behaviours exposed during the enquiry every day. The sector only responds when it must. We will therefore not see any meaningful improvement until the secondary legislation is in place."
Rob Charlton, Architect and CO, Space Group
"The Building Safety Act marks a significant change in the building control regime in this country with the establishment of the Building Safety Regulator and much tighter overall regulatory control. There is still some way to go before this new framework is fully operational but I hope the construction sector will act now to understand its role and responsibilities in implementing these improvements."
Martin Taylor, Executive Director, LABC
