The Building Safety Act 2022 (the Act) received royal assent in April 2022 heralding a significant milestone in the area building safety. 2023 has already seen some of the promised change materialise, with several new regulations coming into force that build upon the framework of the Act and provide further detail on how the new building safety regime set out in the Act will operate in practice. With more activity expected, 2023 will be landmark year for fire safety regulation in the UK.
Building on our previous articles and posts on this subject, we summarise below what has already happened, what further developments we can expect this year for fire safety and comment on what this is likely to mean for those working in the built environment sector.
The Fire Safety (England) Regulations 2022
The Fire Safety (England) Regulations 2022 came into force on 23 January 2023. The Fire Safety (England) Regulations 2022 impose significant new obligations on those responsible for the management of multi-unit residential buildings in England. Details of these new requirements can be found here.
Developer Pledge and developer remediation contracts
On 30 January 2023 the Government published a developer remediation contract to formalise the commitment previously made by 49 developers to remedy life critical fire safety defects in buildings in England over 11 metres in height which they played a role in either developing or refurbishing during the last three decades.
As set out in our article from March 2023, the Government set a deadline of 13 March 2023 for the developers to sign the developer remediation contract which has now passed. However, as of 2 May 2023, three developers (Abbey Developments, Dandara and Rydon Homes) have not signed the developer remediation contract.
Under the Act, the Government has the power to block developers from both commencing developments with planning permission and receiving building control approval for in-progress builds, and we wait to see if the Government will make good on its pledge that the developers will “face significant consequences” if they don’t sign. The recently announced draft regulations for the Government’s Responsible Actors Scheme provides us with detail as to what these “significant consequences” will entail. Details of the proposed scheme can be found in our article here.
We are currently preparing an article summarising and commenting on the developer remediation contract, which will be available shortly.
Sprinklers and Staircases
As reported in our article (here), the Government launched a consultation in December 2022 on the use of sprinklers in care-homes, and a requirement for a secondary staircase in blocks of flats above 30 metres. The consultation closed on 17 March 2023 and we are currently awaiting publication of the Government’s response on the outcome of the consultation (and we will comment on this on in due course).
In the meantime however, in mid-February, London Mayor Sadiq Khan ordered that all new residential buildings in Greater London above 30 meters in height will need to be designed with two staircases at application stage before they can be referred to the Greater London Authority for Stage 2 approval.
Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023
On 6 April 2023 the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 came into force.
These regulations expand upon and clarify the definition of a “higher-risk building” under the Act and should assist the construction industry, and those in the wider built environment sector, in determining whether their building, new or existing, is subject to the new building safety regime.
We will be covering these regulations in more detail in a new article shortly.
The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023
Also on the 6 April 2023, which was a ‘bumper’ date for implementation of regulations in support of the Act, the Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 (the Registration Regulations) came into force. The Registration Regulations require all higher-risk buildings to be registered with the new Building Safety Regulator.
In parallel, with the Registration Regulations, the Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 (the Information Regulations) also came into force on 6 April 2023. The Information Regulations impose further duties on the Principal Accountable Person for a higher-risk building to provide “key building information” to the Building Safety Regulator within 28 days of an application for registration.
The provisions of both the Registration Regulations and the Information Regulations are considered in more detail in our article here.
Building Safety Levy
The Building Safety Levy (the BSL) was first announced in February 2021 with the aim of safeguarding the taxpayer against the cost of funding remedial works to rectify fire safety defects in higher-risk buildings through the Building Safety Fund.
The BSL is to be paid by the developers of new residential buildings in England (regardless of the height of the new developments) as a prerequisite for obtaining building control approval and it is anticipated that the payment will be made in two stages:
- 60% at the “notice to commence” work stage, and
- 40% prior to building control final completion,
allowing for a re-calculation in the event that the scope of the project changes during construction.
The payments to be made under the BSL will be specific to each development and will be adjusted to reflect land value, house prices and the categorisation of the land (e.g. greenfield or brownfield sites) and the BSL is expected to raise £3 billion over 10 years to contribute towards the cost of building safety remedial work.
The Government’s consultation on the BSL ended on 7 February 2023 and we are currently awaiting publication of the Government’s response on the outcome of the consultation (and we will comment on this on in due course).
Additional Provisions of the Act
In accordance with the Government’s transition plan, a number of additional provisions of the Act are due to come into force this year, although no precise timetable has been established for the implementation of these provisions at the present time. The key provisions of the Act that are due to come into force this year are:
- Mandatory reporting to the Building Safety Regulator (BSR) of prescribed fire and structural safety occurrences.
- Gateways Two and Three of the new gateway regime for higher-risk buildings (Gateway One dealing with fire safety at the planning stage came into force on 1 August 2021):
- Gateway Two will require the resolution of all building safety design issues before building control approval is received and will introduce a hard stop in the development process meaning that construction cannot start before the BSR has approved the application for building control approval; and
- Gateway Three will require the BSR to inspect and sign off on a completed higher-risk building and occupation of the higher-risk building will only be permitted once the BSR has issued a completion certificate.
- The establishment of the Building Advisory Committee and Industry Competence Committee within the BSR.
Burges Salmon Comment
The overhaul of the building safety regime in England, which is intended to drive improved safety standards in the construction industry and the wider built environment sector, is continuing apace. The rate of publication of new regulations indicates the Government’s strong desire to ensure that the new building safety regime is implemented within the timeframe set out in the Government’s transition plan (i.e. by April 2024).
Given the seismic and rapidly developing changes in the building safety regulatory landscape, and the potentially draconian consequences associated with a failure to adhere to the new building safety regime, it is essential that those in the construction industry involved in the development of higher-risk buildings, and also those responsible for management and maintenance of higher-risk buildings, are aware of the new obligations and duties imposed upon them by the Act and associated regulations.
We therefore recommend that the individuals and organisations subject to the new regime take active steps to familiarise themselves with the requirements of the new building safety regime to ensure that they stay one step ahead of developments and comply with their new obligations and duties.
At Burges Salmon, our lawyers have experience across all aspects of building and fire safety law and offer client focused advice and solutions across a complex and evolving statutory and regulatory environment. If your organisation requires any advice and/or training on any aspect of the new regime, please do get in touch.
This article was written by Tom Weld, Owen Watkins and Kayla Urbanski.