Building Safety Act 2022 – Easter 2023 Update

By Robert Bowker.

Building Safety Act 2022 – Easter 2023 Update

Introduction – Parts 4 and 5 of the Act  

The principal focus of attention since the Act came into force almost one year ago has been on Part 5 and Schedule 8 in particular on certificates, remediation contribution orders, the Byzantine provisions in regulations 3, 4 and 5 in SI 859 of 2022 governing recovery of amounts from other landlords, the effects of the Pledge and the Fund generally on liability and recovery, and the interaction between the Act and claims under s.1 of the Defective Premises Act 1972 and appeals against improvement notices under the Housing Act 2004. The First-tier Tribunal case law on Part 5 and Schedule 8 is now beginning to be made.

It is, therefore, worth turning attention, at least momentarily, to Part 4 to see what is happening elsewhere under the Act.

The purpose of this article is to summarise a series of new regulations. Rather than discuss the regulations in detail and assess their practical significance, this article is introductory. The regulations’ detail and practical effects will be the subject of a subsequent article.

 

Statutory instruments

The regulations have been introduced by the following statutory instruments, listed in the order in which they were made –

• 275 of 2023 – The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 which were made on 6 March 2023 and which came into force on 6 April 2023 (“2023/275”)
• 315 of 2023 – The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 which were made on 9 March 2023 and which came into force on 6 April 2023 (“2023/315”)
• 362 of 2023 – The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations which were made on 23 March 2023 and which included provisions which came into force on 1 April 2023 and 6 April 2023, and which will come into force on 1 October 2023 (“2023/362”)
• 396 of 2023 – The High-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 which were made on 26 March 2023 and which came into force on 6 April 2023, and which were accompanied by an explanatory memorandum (“2023/396” and “Memo”)

 

Part 4 of the Act

The Explanatory Notes to the Act said this at §§30, 31, 55 and 58 respectively (emphasis added):

“The Act allows for a new dutyholder regime to be incorporated across the lifecycle of higher-risk buildings. This is based on the principle that the person or entity that creates a building safety risk should, as far as possible, be responsible for managing that risk…Many aspects of the regime…will be taken forward through secondary legislation…The Accountable Person is the dutyholder during occupation. They may be an individual, partnership or corporate body and there may be more than one Accountable Person for a building…The Act creates an ongoing duty on the Accountable Person to assess the building safety risks relating to the building, to take all reasonable steps to prevent a building safety risk materialising, and to limit the severity of any incident resulting from such a risk.”

 

2023/275 – defining a higher-risk building

The explanatory note to the SI states: “These Regulations determine which buildings will be subject to the new more stringent safety regime established by the [Act]”.

The SI comprises eight regulations of which the more significant are likely to be:

• regulation 4 (by which “building” is defined);
• regulation 5 (by which the height of a building is to be defined);
• regulation 6 (by which the number of storeys a building has is to be assessed); and
• regulation 7 (which excludes certain buildings from the definition of “higher-risk building” including an hotel where the hotel comprises the building in its entirety).

 

2023/315 – registering a higher-risk building

The explanatory note to the SI states: “These Regulations make provision about the register of higher-risk buildings held by the building safety regulator…about making an application for registration of a higher-risk building including the associated fee and withdrawing that application…[and] also set out further provisions about decisions of the regulator that may be subject to a review under section 25 of the [Act].

 

The SI comprises 23 regulations divided into four parts:

• Part 1 (regulations 1 and 2) contain general provisions;
• Part 2 (regulations 3 to 9) contains provisions relating to the register of higher-risk buildings;
• Part 3 (regulations 10 to 22) contains provisions relating to applications for registration; and
• Part 4 (regulation 23) makes provision for a review of regulator’s decision including decisions not to register, to remove from the register, to refuse to remove from the register, to refuse an application for a building assessment certificate and to give a direction for assessment of building safety risks.

 

2023/362 – new provisions coming into force    

The explanatory note to the SI states: “These Regulations are the fourth commencement Regulations made under the [Act].

As a reminder, the previous three commencement regulations were:

 

• SI 561 of 2022 which was made on 19 May 2022 – “Commencement No. 1”
• SI 927 of 2022 which was made on 31 August 2022 – “Commencement No. 2”
• SI 1210 of 2022 which was made on 18 November 2022 – Commencement No. 3”

 

2023/362 comprises five regulations of which regulations 2 and 3 are likely to be of greater significance.

Regulation 2 contains provisions coming into force on 1 April 2023. These include new functions of the building safety regulator.

Regulation 3 contains provisions coming into force on 6 April 2023. These include the provisions in Part 4 supporting the registration of higher-risk buildings.

Regulation 3(2) defines, for the purpose of regulation 3, “resident management company” and “tenant owned or run building” – see the list in sub-regulations (2)(a) to (e), for example (e) by which a tenant owned or run building means a building or part of a building in relation to which there is a RTM company.

 

2023/396 – key building information and accountable persons  

The explanatory note to the SI states: “These Regulations set out what constitutes ‘key building information’ in respect of higher-risk buildings; the duties and provisions in relation to submitting key building information; and sets out how to determine for which parts of a higher-risk building an accountable person (“AP”) is responsible under Part 4 of the [Act].”

The key provisions in the Act itself are sections 72 (Meaning of “accountable person”) and 89 (Provision of information etc to the regulator, residents and other persons).

 

The SI comprises 30 regulations:

• the key building information is the information set out in regulations 3 to 18. This includes information about any ancillary building, the building’s use, materials, fixtures on external walls, structure, storeys and staircases, energy and emergency planning; and
• regulations 19 to 23 provide for the key building information duties in particular those imposed on the principal accountable person.

 

The regulations are accompanied by the Memo which comprises 15 paragraphs. It is worth reciting part of paragraph 7 which sets out the policy background and therefore places all these recent developments in their legislative context (emphasis added):

“7.1 The Act establishes a new more stringent building safety regime for higher-risk buildings. It was a fundamental part of Dame Judith Hackitt’s recommendations, as part of the new approach to managing fire and structural safety risks in higher risk buildings as outlined in her Building a Safer Future Report, commissioned by government after the Grenfell Tower tragedy.

7.2 The report set out that there were extensive flaws with the existing building safety system. Dame Judith identified serious issues with the transparency of information, and inadequate audit trails of information throughout the life cycle of a building that did not provide reassurance and evidence that a building has been built to be safe and continued to be safe. These Regulations are part of the reforms the government are taking forward under the Act and introduce new requirements on those responsible for higher-risk buildings to provide the Regulator with key building information.

7.3 The government is requiring this information so the Regulator can carry out an initial triage of the potential risk levels in the existing 13,000 higher-risk residential buildings. The Regulator will require building assessment certificate applications as a priority for the buildings where, based on the information provided and other sources of intelligence from other regulators, the Regulator assesses the building’s potential for a building safety risk materialising to be higher than others.”

 

Looking forward, the Memo says this at §7.9 (emphasis added):

“Compliance notices in relation to failure to supply information can only be issued from the date that it is mandatory for existing buildings to be registered and the enforcement regime turns on. Existing building can register from 6 April but we only have the power to enforce it from when the regime turns on (expected to be 1 October).”

 

In respect of the interplay between flats and common parts, the Memo says this at §7,19 (emphasis added):

“Where the accountable person has no control over a residential unit – either it is a commonhold unit or a flat held on a long lease, it will only be responsible for mitigating or prevent [sic] building safety risks within the flat in so far as they impact on the common parts and other flats. Where necessary the accountable person can utilise contravention notices under section 96 of the Act to compel residents within those flats to take steps to remedy the contravention or cease behaviours which lead to contravention of Part 4 duties. For the avoidance of doubt, the Regulations make provision for determining which accountable person is responsible for a balcony, and other parts of a building, to which the Fire Safety Order does not apply. This is to ensure that we achieve a whole building approach with regards to building safety management.”

 

For the contents of a contravention notice – see section 96(3) of the Act.

And in terms of the Tribunal’s jurisdiction, a factor that will be of particular significance for property litigators, Part 7 of the Memo concludes with this at §7.22 (emphasis added):

“These Regulations also provide a framework for the First-tier Tribunal Property Chamber to determine, on an application (under section 75 of the Act), which person should be responsible for duties in a particular part of a building and clarify situations where there are multiple persons involved in building ownership.”

 

For the categories of persons with standing to make an application for a determination – see section 75(3) of the Act.

 

Conclusions

Clearly this Easter’s developments are extremely wide-ranging and challenging. This article only scratches the surface of those developments.

Parts 4 and 5 of the Act will have a significant bearing on the work property litigators do in the coming years. The new regime is largely untested; it is less than a year old. Its provisions are gradually being introduced, creating a vast body of secondary legislation much of which cannot properly be understood or applied in isolation.

Cases under Part 5 are only just beginning to be litigated. There will be more under Part 4 in due course. The various guidance notes and explanatory memoranda are enormously helpful but clearly no substitute for a detailed reading of the legislation itself. But perhaps the best starting point for understanding the most recent developments is the Memo, easily available by following the links on the Government legislation web-site, and  which is well worth reading in its entirety.