Spec Finish

Feature www.thefis.org 25 when enacted, it is likely that there will be commencement orders bringing particular parts of the Bill into force. What the Bill proposes There will be a new regulatory regime for construction. Key features include: • a Building Safety Regulator to oversee safety and building performance.There are to be three committees; a Residents’ Panel so occupiersmay be consulted and heard, an Industry Competence Committee tomonitor industry competence, and a BuildingAdvisory Committee to keep safety under reviewand advise on future building regulations; • for buildings of 18m or seven storeys and above (including care homes and hospitals) there will be new responsibilities on duty holders: - there will be published standards for Principal Designer and Principal Contractor; and - all duty holders will have to cooperate, communicate, and share information and demonstrate competence. • there will be a register of building inspectors and building control approvers; • the new regime will have gateways at which safety has to be considered: - the first of these will be at the planning stage (and this is to be achieved by the amendment of current planning regulations and is due to come into force on 1 August 2021); - the second gateway will be a requirement to lodge building control plans with the Building Safety Regulator and gain approval before work starts (at the moment, this requirement looks to be at least 21 months away); and - the third gateway will be at completion where a further application must be submitted to the Building Safety Regulator (again, likely, 21 months away). • there is to be a ‘golden thread’ of material to be developed throughout the design and construction process. This is intended to address the building structure, materials, maintenance testing, inspection and the implementation of fire risk assessments; • once constructed and occupied there should be an Accountable Person responsible for registering the building with the Building Safety Regulator. They will also have to carry out various duties including: - ensuring residents’ safety, conducting an assessment of building safety risks, taking proportionate steps to reduce and manage risks and preparing reports for inclusion in the golden thread, - appointing a competent Building Safety Manager to assist in the performance of those roles; and - apply for a BuildingAssessment Certificate fromtheBuilding Safety Regulator the issue of whichwill followa schemewhere theAccountable Person reports so as to satisfy theBuilding Safety Regulator that they are performing their duties. • enforcement is to be strengthened and new offences will be created in relation to failing to apply for a Building Assessment Certificate, obstructing authorised officers of the Building Safety Regulator and failing to rectify requirements; • there is to be a Building Safety Charge to cover the costs of this regime. Where leases allow charges to be passed on to tenants, amendments to the Landlord & Tenant Act 1985 will mean the owner must explore alternative cost recovery routes before passing the charges on; and • the Architects Registration Board is to have strengthened powers to monitor the competence of architects. The report fromDame JudithHackitt observed that a “systemfailure” had allowed a “culture of indifference to perpetuate”.Whether the new regimewill overcome that will depend upon resource and a change in that culture. Therewill inevitably bemorework andmore cost for those involved in the construction process but, hopefully, a better outlook for the occupiers of buildings constructed after this new legislation comes fully into force. Enforcement of the Regulation As well as the introduction of a new regulator and enforcement regime, there will also be changes to other legislation designed to facilitate occupiers being able to claim. While most of these changes are also prospective, one, of importance, is retrospective. The first thing of note will be the activation of section 38 of the Building Act 1984. This section, which has lain dormant in the statute books for some time, provides for potential civil liability where a breach of building regulations causes damage. Although most building contracts will require the contractor to comply with Building Regulations, that obligation is only owed to the contracting party. The section, when activated, is likely to give others a right to claim without a contractual relationship. The right will, however, be prospective and therefore will not benefit occupiers of buildings where there is existing non-compliance with Regulations. Extending the legacy issue A significant piece of legislation that is being adapted through the Building Safety Bill is the Defective Premises Act 1972. This Act was introduced to codify the position of “a person taking on work for or in connection with the provision of a dwelling”. Such people owed a duty to a person acquiring an interest in the dwelling to see that the work is done in a workmanlike manner, with proper materials and so that the dwelling will be fit for habitation. The difficulty with this legislation from the claimant’s point of view, was that there was a limitation period of six years from completion of the work. It is proposed that this period will be extended to 15 years and, once the amendment to the Act comes into force, that period will be retrospective, with claims possible dating back to 2008. The retrospective change applies only in relation to the provision of a dwelling. Where the dwelling has been refurbished, there will again be a 15-year limitation period but it would seem that that will only be prospective, covering breaches from commencement of the new legislation (likely 2023). At the moment, it is anticipated that the changes to the Defective Premises Act will apply to all dwellings, whether above or below the 18m/seven storey threshold. As the Bill is only at draft stage, these may yet change and how they will operate in practice will then depend upon the courts’ approach to what is and what is not significantly prejudicial to the party against whom the claim is made. We are some way off seeing the final implementation and it is not impossible that the Government could, by regulations, limit the amendments to those buildings.