The latest updates on the Building Safety Act 2022

Since the Building Safety Act 2022 (‘’BSA’’) gained Royal Assent on 28^th April 2022, further guidance has been published to address the ongoing challenges and refinement of the legislation. The BSA has introduced new provisions which relate to non-compliance with the building regulations and provides personal liability for the manager or director (or similar officers) of that corporate body should they commit offences in relation to the management of the building safety of the higher-risk buildings (‘’HRB’’).

The latest developments are as follows: –

1. New residential buildings over 18 metres will require a second staircase

On 24^th July 2023, Michael Gove (‘’Gove’’) confirmed in a speech that two staircases will be required in all new residential HRB taller than 18 metres, in place of the 30-metre threshold previously proposed in a consultation.  The aims of this proposal are: –

• to ensure access for firefighters;
• to provide residents (including disabled users) with multiple escape routes if one route is filled with smoke; and
• to increase HRB’s resilience in extreme weather.

Although over 20,000 residential units, approved or in planning, are likely to be caught by the second staircases rule change, Gove has reassured the public that there will be transitional arrangements in place to ensure that there is no disruption to housing supply.

(i) Advice to developments pending Planning Applications

Whilst awaiting further clarification from Gove regarding the transitional arrangements, the Mayor of London has taken the recent proposal into account by requiring all planning applications which involve HRB over 30 metres to be designed to provide a second staircase before referral to the Great London Authority (‘’GLA’’) at Stage 2 for the Mayor’s decision. The GLA’s planning team is also working with other London boroughs to progress forthcoming schemes to ensure the inclusion of two staircases where required.  Therefore, it is advisable for those who are applying for planning permission for HRB to consider including a second staircase in their proposed plans.

(ii) Advice to developments which have obtained planning approval for a single staircase but are pending building control approval

As planning permissions are granted under the approved plans and cannot be subsequently changed into a second staircase plan without further approvals, it puts developers in a slightly trickier position. Planning permissions will usually be determined first, followed by building control applications which concern the safety of the building works. Therefore, in this case, designs will need to be revised and a new planning application submitted to include a second staircase. The types of a new application will depend on the material changes required to accommodate a second staircase; this could be done either through an application for: –

• A non-material amendment (pursuant s.96A of the Town and Country Planning Act 1990);
• A minor material amendment (pursuant to s.73 of the Town and Country Planning Act 1990); or
• An entirely new planning permission.

2. Government Support for the Cladding Safety Scheme

Following Gove’s announcement, the Department for Levelling Up, Housing and Communities also published new guidance which confirmed that funding will be provided for unsafe cladding where a ‘’responsible developer cannot be identified, traced or held responsible’’. The Cladding Safety Scheme will be available to all eligible buildings over 11 metres outside of London and between 11-18 metres inside London. Whilst the Building Safety Fund will continue to administer funding for applications already accepted into the fund, it will also accept new applications for HRB over 18 metres inside London.

3. Additional enforcement powers are introduced

(i) Introduction to compliance and stop notices 

A new provision, section 38 of the BSA is introduced, which enables the Building Safety Regulator (‘’BSR’’) to issue: –

• Compliance notices – requiring non-compliant work to be remedied by a certain date
• Stop notices – requiring work to be ceased until serious non-compliance is remedied

Failure to comply with the above notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine.

(ii) New criminal offences – personal liability of ‘officers’

Another new striking provision, section 161 of the BSA, extends the liability of the corporate bodies under Part 2 or Part 4 of the BSA to the individuals of the corporate bodies. To satisfy the threshold of this offence, it must be committed ‘’with the consent or connivance of any director, manager, secretary or other similar officers of the company, or any person in such capacity’’, or ‘’is attributable to any neglect on the part of any such person’’.  It is also a potential offence if someone is obstructing or impersonating an authorised officer in the exercise of a relevant function, providing misleading information to the BSR, occupation of an HRB without a completion certificate, failure in registering an HRB or giving the prescribed information to the BSR.

(iii) Additional powers

The BSR has powers to hold local authorities and registered building control approvers accountable when they are not performing to the appropriate standard. The BSR also has the power to suspend or remove inspectors from the register and to prosecute them where necessary. In addition, the BSR has the power to apply to the First-Tier tribunal for an order to appoint a Special Measures Manager to replace the Accountable Person (who is usually the freeholder who has the responsibility to maintain the HRB structure and common parts), where the Accountable Person fails to comply with their statutory obligations.

4. The impact of the BSA

(i) On the Building Act 1984 (‘’BA’’)

Before the BSA came into force, the relevant period to take enforcement action under the BA was within 12 months of completion of the work. The BSA significantly extends this time limit for bringing enforcement action from one year to ten years. Additionally, section 39 of the BSA introduces an offence for a person who contravenes a provision of the building regulations and increases the penalty of such breach from a summary offence to imprisonment of up to two years and/or unlimited fines.

(ii) On the Defective Premises Act 1972 (‘’DPA’’)

Section 135 of the BSA extends the limitation period to bring a claim from six years under the DPA to the following under the BSA: –

• 15 years for claims regarding works completed after 28 June 2022; and
• 30 years for claims regarding works completed before 28 June 2022

Summary

To conclude, the BSA has undergone important updates this year with the requirement of a second staircase on HRB, additional funding to the Cladding Safety Scheme, and additional enforcement powers to individual officers. These updates also expand the scope of regulations, introduce a higher safety standard for HRB, and provide clearer guidance for all developers and leaseholders. Whilst there are parts of the BSA that are yet to be implemented, the BSR will likely take a proportionate approach with its enforcement action when it comes to failure to place appropriate procedures when dealing with building safety defects and incidents. Therefore, building owners must familiarise themselves with these upcoming changes to ensure compliance, mitigate risks, and enhance the safety of the HRB.

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