Building Safety Bill: Key takeaways

The Building Safety Bill is one of a number of measures intended to improve the regulatory regimes and standards for building and fire safety in the future in high-rise residential buildings by ensuring that there will always be someone responsible for keeping residents safe.  

The Building Safety Bill

Building safety has been at the forefront of the construction industry's mind since the tragic Grenfell Tower fire in West London on 14 June 2017. The tragedy exposed serious and systematic failings in the construction and management of high-rise residential buildings and has given rise to homeowners facing significant bills for the rectification of fire safety and other defects.

The revised draft Building Safety Bill (the "Bill") published on 5 July 2021 is a product of the independent review of the Building Regulations and fire safety led by Dame Judith Hackitt, and her subsequent final report 'Building a Safer Future', published in May 2018. As of 5 July 2021, the Bill has reached its First Reading in the House of Commons, and Royal Assent (RA) is anticipated in 9-12 months.  Thereafter, the measures set out in the Bill will be made law by way of secondary legislation over a further period of up to 18 months.

Impact

On 5 July 2021, Housing Secretary Robert Jenrick outlined the overarching aim of the Bill, which is designed to give residents in tower blocks more power to hold builders and developers to account, to establish a new regime for building safety regulation and toughen sanctions against those who threaten residents' safety.
The measure grabbing the headlines is the extension to the time period within which homeowners may claim compensation from developers under the Defective Premises Act for construction defects that render a dwelling unfit for habitation.  It is proposed that the limitation period will more than double, from 6 to 15 years from the date of completion of the building.  Crucially, this will apply retrospectively meaning that claims could be brought in respect of properties completed up to 15 years prior to this change coming into effect.

Assuming secondary legislation enacts the limitation extension on say 1 July 2022 it will mean that claims could still be brought, just, for buildings completed in early July 2007.  However, homeowners in properties completed in the latter part of 2006 and early 2007 that are unfit for habitation due to defects may lose out unless the enactment of this provision is expedited.  

In Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC), the court provided guidance as to the applicable standard to be met for a dwelling to be 'fit for habitation'.   Applying the court's guidance, where dwellings cannot be occupied for a reasonable time without risking the health and safety of the occupants then such dwellings are unlikely to be deemed fit.  This would cover many of the residential buildings currently suffering with serious fire safety defects including those, for example, that have insufficient fire stopping and or incorporate unsafe combustible materials.

Whilst the extension should be welcomed by homeowners, it is important to remember that homeowners pursuing Defective Premises Act claims will bear the burden of proving that dwellings are 'unfit for habitation'.  Accordingly they will need supporting evidence from appropriately qualified experts.  The challenges in this regard are illustrated by the recent case of Naylor v Roamquest Ltd [2021] EWHC 567 (TCC), which involved allegations by leaseholders of defects in combustible cladding installed in residential flats in Greenwich. Faced with the impending expiry of the limitation period for bringing a claim the leaseholders of 82 of 1,002 residential flats issued a claim against the freeholder and builder.  The basis of the claim was a lack of documents proving the absence of defects. Rejecting the claim as presented to it in the formal pleadings, the court said it was improper for the leaseholders to bring a claim on such a basis and that the onus was upon them to carry out investigations as required to identify defects with precision.  The court was not sympathetic to the pressures imposed by the impending expiry of the limitation period and confirmed that this could not relieve the claimants of their burden of pleading and establishing a positive case.  The court did, however, allow the claim to continue on the basis that the leaseholders amended their statement of case (with support from investigations and expert reports).

In addition to the extended limitation period for Defective Premises Act claims, if enacted, the Bill will introduce the following measures:

• 'Higher-risk buildings' will be regulated throughout the design, construction and refurbishment phases of a building’s lifecycle.
• A Building Safety Regulator will be established to oversee the regulatory regime and hold people who break the rules and do not properly manage building safety risks to account.
• Building owners will be required to manage safety risks, with clear lines of responsibility for safety during design, construction, completion and occupation of high-rise buildings. This ensures that people who are responsible for the safety of high-rise residential buildings are clearly identifiable.
• There is a 'hard stop' in each phase of the construction work – from planning, to pre-construction and design, to the completion stage – so those building or carrying out significant refurbishment works to high-rise residential buildings will be required to seek approval from the Regulator before they are able to proceed with the next phase of work.
• Linked to this is the requirement for a 'golden thread' of information stored digitally, with safety considered at every stage of a building's lifetime including during the earliest stage of the planning process.
• The Bill will strengthen the construction products regulatory regime, with new requirements to make sure more products are safe, while paving the way for a National Regulator for Construction Products, i.e. the Office for Product Safety and Standards (OPSS), to oversee and enforce the rules.
• Leaseholders are protected from exploitation over remediation costs by requiring building owners to explore alternative ways to meet the costs and provide evidence that this requirement has been met.
• The Bill mandates developers to join and remain members of the New Homes Ombudsman scheme. It gives residents in high-rise buildings to have more say in the management of their building. They will be able to raise building safety concerns directly to the owners and managers of buildings, who will have a duty to listen to them. If residents feel concerns are being ignored, they can raise them with the Building Safety Regulator.
• Those who fail to meet their obligations may face criminal charges. Where an offence has been committed by a corporate body, the individuals directing or managing a company can be held criminally liable.