The Building Safety Bill (the Bill) was laid before Parliament on Monday 5 July. It is likely to take 9 to 12 months to gain Royal Assent and pass into law. It is on any account a substantial piece of legislation: the Bill itself is 218 pages long and taken together with its explanatory notes (257 pages) and supporting documentation dealing with delegated powers, impact assessments, draft regulations and so on the whole package weighs in at an impressive 852 pages. In the pre-digital era it would have made a substantial thump when it landed on your desk.
For those that have been following the evolution of the Bill from the initial recommendations in the Hackitt Report Building a Safer Future (2018), the MHCLG Consultation Paper (2019) and the initial draft of the Bill issued last year, there should be few surprises. As in the previous incarnation of the draft, the Bill establishes the new post of Building Safety Regulator within the HSE, makes a number to changes to existing legislation, particularly the Building Act 1984, to tighten and improve the existing building safety regime and provides the framework for regulating higher-risk buildings (broadly, multi-occupancy residential buildings of 7 storeys or more or above 18m in height). As before, many of the well-known features of the Bill such as the gateway process and references to the golden thread of information can be found in the accompanying explanatory notes rather than within the body of the Bill itself. This highlights another aspect of the Bill which has been carried over from the previous draft – that it is in a number of respects a framework which will be fleshed out by more detailed secondary legislation over the next few years.
Perhaps the single most remarked-upon provision (at least by the legal sector) which is new to the Bill is the extension of the limitation period within which proceedings in Court can be brought against those responsible for defects in relation to buildings (not just the higher-risk buildings referred to in the Bill). This relates to actions arising under the Defective Premises Act 1972 (DPA), which allows for claims against anyone involved in the construction of a dwelling where that dwelling is not "fit for habitation". The effect of the amendments made by the Bill to the DPA and the Limitation Act 1980 is to extend the limitation period within which claims can be brought under the DPA from 6 to 15 years. This change is retrospective, consequently it will apply to existing structures as soon as the relevant part of the Bill is enacted. This should sound alarm bells to those who may be responsible for such buildings: you have about 11 to 13 months in which to put things right (9 to 12 months to Royal Assent plus another 2 months before the limitation amendment kicks in). The other point to note is that in addition to the DPA the Bill also refers to section 38 of the Building Act 1984. This section is not as yet in force. It imposes liability for a breach of the Building Regulations that causes damage. Is the government thinking of activating this section?
Perhaps the more practical issue is whether many people will actually be able to afford the cost of the litigation involved in pursuing such a claim in Court. Whilst it would be difficult to criticise the extension of leaseholders' and others' rights in this way, this does not really address the issues that leaseholders in defective buildings are currently facing in relation to meeting very substantial rectification costs.
We are obviously at the beginning of a lengthy process. The indicative timetable published with the Bill anticipates Royal Assent being achieved in 9 to 12 months. After that, the implementation of the raft of secondary legislation consequent upon the introduction of the Act (as it will then be) is anticipated to take another 12 to 18 months. This will include measures such as establishing the Resident Panel, strengthening the powers of the Architects' Registration Board, supplementing existing powers in relation to construction products, establishing the registration system and the dutyholders/Accountable Persons regime, setting up the gateway process and introducing measures around the golden thread of information. We are just at the start. Hopefully, at the end of this process the sector will be better regulated, safer and more accountable.