The Building Safety Act 2022 (the Act) is described by the UK government as introducing "ground-breaking reforms" by making provision for "an ambitious toolkit of measures that will allow those responsible for building safety defects to be held to account."
The new regulator
Our previous update summarised the changes implemented by the Act including the new Building Safety Regulator (BSR).
The BSR will be part of the Health & Safety Executive (HSE). The HSE have explained that the BSR's key functions will be:
- "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."
It remains to be seen how the BSR will collaborate with established departments within HSE such as their Construction Division. At this stage, it is made clear in the Act that the BSR will have extensive powers of investigation including powers to require the production of information and documents and powers to enter buildings in certain circumstances. These powers are similar to HSE's powers in relation to suspected breaches of existing health & safety law.
The Act also creates new criminal offences. A prime example is the offence of a "contravention giving rise to risk of death and serious injury". An accountable person for a higher-risk building will commit an offence if, without reasonable excuse, they contravene certain requirements in the Act and the contravention places one or more people in or about the building at critical risk. The kind of requirements caught include duties to assess building safety risks and preparation of a safety case report. It's also worth noting that this offence only applies to higher-risk buildings. As we have discussed in previous updates, it is still to be confirmed whether hospitals and care homes will be considered as "higher risk buildings" during their occupational phase, but what we do know is that any building that is at least 18 metres in height or has at least 7 storeys and contains at least two residential units will be caught.
UK construction contractors and property developers should take steps now to familiarise themselves with the requirements in the Act and to implement new or update existing compliance regimes. This is particularly important for organisations engaged in higher risk building projects.
Taking these steps now is important for several reasons:
- The Act creates a range of new requirements. Organisations should apply their minds now to the steps required to demonstrate compliance. That may mean updating existing policies and procedures or preparing new ones.
- The new offences in the Act create the risk of enforcement action and prosecution. In this context it is worth noting that where certain offences in the Act are committed, senior individuals within the organisation can be personally liable (in addition to the organisation) where the offence is committed with their consent or connivance or is attributable to their neglect. This provision mirrors section 37 of the Health and Safety at Work etc Act 1974 and continues the regulatory trend of imposing personal liability on senior management. To mitigate the risk of investigation and prosecution, an organisation's leadership team should ensure an effective compliance system is implemented.
- We anticipate that BSR, like existing departments within HSE, will robustly investigate suspected breaches and will take enforcement action. Given the high-profile background to the legislation, it is inevitable that there will be media and public interest in any suspected breaches.
The provisions of the Act explained in this update apply to England & Wales so will be relevant for construction and property developer organisations with a UK offering. For more content around building and fire safety regulations and legislation visit our Building & Fire Safety Hub.