Going back in time? Updates to the Building Safety Bill

What do you remember from 1992? The European Union was founded, the Danish mens' football team won Euro '92 and Bill Clinton was elected President of the United States of America for the first time, however, do you remember what you were doing professionally?

I suspect that (like me) a number of you won't even have begun your careers at this stage, but the Government are now asking that developers provide "comprehensive information" on all buildings over 11m which they have been involved in constructing over the last 30 years. I have already written on Michael Gove's announcements regarding cladding on medium rise buildings (between 11m and 18m), but I thought this issue deserved further consideration.

30 years of records?

Some of the problems which this demand causes should be obvious:

• Older records may simply no longer exist - in the early 90s, almost all records are likely to have been hard copy only. As projects have completed and developers have started on new work, old records will have been filed away. However, with the passage of time these paper copies may well have been lost, or even destroyed once sufficient time had passed.
• Even the best of memories will be vague after all that time has passed – in the absence of contemporaneous evidence, there is only so much that people who worked on relevant projects (if indeed they can still be located) will be able to contribute.

The sting in the tail

As yet, there have been no details provided about what these records will be used for but, a separate press release issued by the Department for Levelling Up, Housing and Communities on the same day is likely to cause concern in the industry. The press release confirms that the "government will also introduce amendments to the Building Safety Bill to retrospectively extend the legal right of building owners and leaseholders to demand compensation from their building’s developer for safety defects up to 30 years old."

Therefore, there is a very real possibility that any information which developers and contractors provide will be used as a further lever to pressure them to carry out works and/or pay into the Government's fund as, if they do not, they may well face legal action from the owners and occupiers of affected properties.

I've discussed the Government's proposals to extend the period for claims under the Defective Premises Act to 15 years from six years in an earlier article, but further increasing this period to 30 years is likely to have a significant negative impact on the ability of developers and contractors to find appropriate insurance coverage.

This also presents a substantial change in policy from the Government. Members of the Parliamentary Committee considering the Building Safety Bill had pressed for an amendment in the terms now proposed. The Minister of State for Housing, Christopher Pincher MP appeared before the Committee and explained that the proposed increase was not something the Government were in favour of as the Government could not "go back indefinitely, and a proportionate longstop needs to be arrived at". Mr Pincher also raised the possibility that an increased period to 30 years may be met with challenges based on the Human Rights Act. This explanation led to the Committee withdrawing its proposal. However, the Government's position now appears to have changed.

What next?

The Building Safety Bill has passed through the Committee Stage to the Report Stage. It will then go to its Third Reading in the House of Commons, where this new amendment will be introduced, before heading to the House of Lords.

Given the Government majority in the Commons, its highly likely that the amendment will be accepted and, if the proposed timetable is met, the Bill will become an Act by the summer. Both developers and occupiers of defective premises will be watching closely to see the consequences.