Earlier this month the Government published the Building Safety Bill as part of its continuing efforts to respond to the Grenfell disaster and recommendations made following the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt.
This article is taken from July's public matters newsletter. Click here to view more articles from this issue.
Earlier this month the Government published the Building Safety Bill as part of its continuing efforts to respond to the Grenfell disaster and recommendations made following the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt. The draft bill includes a number of proposed changes to the regulatory framework surrounding the construction industry. In this article we consider some of the most significant changes and the impact they could have upon the way construction is carried out by public sector bodies, including the introduction of a Buildings Safety Regulator responsible for holding local authorities and registered building inspectors to account.
The new Building Safety Bill is part of the radical rethink of building regulations and fire safety recommended by Dame Judith Hackitt. It follows on the heels of the ban on use of flammable material for cladding on high rise buildings and revised guidance on desktop fire safety assessments introduced in 2018.
For the construction industry generally the Building Safety Bill’s publication confirms the government’s direction of travel towards a strengthened regulatory regime for high rise buildings.
The Building Safety Bill proposes changes to the Defective Premises Act 1972 and Limitation Act 1980 that would extend the period within which legal action may be brought to claim compensation for sub-standard construction work on residential buildings from six years to fifteen, to apply retrospectively. The extended liability period would also apply to actions under Section 38 of the Building Act 1984 but only prospectively, although Section 38 is yet to come into force.
The proposal to extend the limitation period has attracted considerable controversy. The building industry is concerned that this will lead to increased compensation claims and could offer landlords and building owners a new route for bringing claims against contractors outside the terms of any building contract. Leaseholders and homeowners have also questioned the proposals, citing the high evidential and financial barriers to bringing legal action, with no guarantee of a favourable outcome due to the inherent ‘litigation risk’ and the likelihood that the developer responsible has ceased to trade or is now insolvent.
From the contractor’s perspective the likelihood that these proposals could change further during the adoption process will complicate the process of assessing any potential retrospective liability.
The Building Safety Bill proposes the creation of a new Building Safety Regulator within the Health and Safety Executive. The Building Safety Regulator would have three core functions; implementation and enforcement of the new regulatory regime for higher-risk buildings; overseeing the safety and performance of all buildings; and, assisting and encouraging competence in the building industry and among registered building inspectors.
New and strengthened powers would be granted to the Building Safety Regulator, including an extension of the time limits for enforcement action in relation to Building Regulations under the Building Act 1984 from one year to ten years, the power to issue compliance and stop notices, and the power to impose competence requirements on professionals.
Importantly, the Building Safety Regulator would also be responsible for holding local authorities and registered building inspectors to account, with the power to suspend or remove inspectors from the register and prosecute where necessary. All local authority building control teams will need to understand the changes and how their roles and responsibilities are affected. The Building Safety Regulator’s powers to enforce compliance with registration and competency requirements are backed by sanctions including fines and imprisonment.
The Building Safety Bill also requires the Building Safety Regulator to advise on extending the definition of “high-risk buildings”, implying that the scope of this measure could be widened over time.
The introduction of a new regulator, with wide ranging functions and enforcement powers, is likely to result in significant uncertainty for the construction industry and local authorities. It will be some time before there is clarity over what the measures proposed in the Building Safety Bill mean in practice and where the limits of the powers given to the new Building Safety Regulator lie, with the courts likely to play a significant role in resolving these questions.
The Building Safety Bill proposes new competence requirements to apply to building professionals, a new register and competency regime for architects, and a New Home Ombudsman scheme that specified developers would be required to join.
Consultants, contractors, surveyors and developers will need to understand what competence and registration requirements apply and how to avoid breaching them.
While the Building Safety Bill’s intention is that employers will benefit from the information available on the competency and registration status of key building industry professionals, checking that each member of the professional team is compliant will add a further step to the procurement process.
A system of three stop/go gateway points at the design, construction and completion phases of residential high-rise buildings is proposed in the Building Safety Bill; at the planning permission stage information must be submitted to show that fire safety requirements have been considered and incorporated into the proposals; at the pre-construction stage the Building Safety Regulator must be satisfied that the design meets building regs requirements; and, at completion, the Building Safety Regulator will only issue a completion certificate if it is satisfied that the work is compliant.
While the legislator’s intention is that the new rules will encourage cooperation, communication and ultimately compliance with building regulations, for employers, contractors and developers the stakes will be considerably raised at these three pinch points in the process. The potential for a project to be stopped by the HSE if requirements are not met is also likely to focus much more attention on contractual provisions around delays and where responsibility lies for the payment of associated damages.
The draft timetable for adoption and implementation of the proposed measures anticipates that Royal Assent will be granted 9-12 months after introduction of the Building Safety Bill, and that all measures will come into force over a period of 18 months following Royal Assent. The extension of the limitation period of the Defective Premises Act 1972 is to come into force just two months after Royal Assent, i.e. potentially as early as June 2022. This could mean claims under the DPA 1972 would be within limitation from June 2007 forwards.
Before this stage is reached the Bill must pass through parliament, with every likelihood that its content and the timetable for adoption will change but there is no guarantee of the final result.
The construction industry and local authorities will need to keep a close watch on the adoption process in order to be ready for whatever radical solutions emerge from the parliamentary machine.
If you need further information on the implications of the proposals in the Building Safety Bill, we are ideally placed to help. If you would like to discuss this, please contact Martin Cannon at firstname.lastname@example.org.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Logistics company Eddie Stobart has been fined £133,000, after a series of failures which took place whilst excavation work was carried out, exposing its staff to asbestos.
Browne Jacobson has appointed Amy Chapman, the former Group Legal Director of global built environment experts Mace Group, as its first Non-Executive Director (NED) of its Construction & Real Estate sector strategy board.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.