Building Safety Act 2022

The Building Safety Act is important legislation which aims to improve the safety of all buildings. Although there is an emphasis on those categorised as “higher-risk”, the Act impacts the carrying out of building work to all building types.

Following the fatal fire in the Grenfell Tower on 14 June 2017, in which 72 people died and over 70 people were injured, the Government commissioned an independent review of the building regulations and fire safety. The introduction of the Building Safety Act was one of the Government’s responses to that review.

Yes, but in different ways. The changes that are likely to impact FMB members are those affecting building work carried out in England and Wales.

Some, but not all, of the changes include:

• the creation of the Building Safety Regulator and the New Homes Ombudsman;
• changes to the building control procedure;
• new duties and obligations for clients, designers, and builders during the lifecycle of a project;
• extended periods of time within which claims can be brought against designers and builders in relation to defective work;
• the possibility of directors, managers and other officers of companies being held personally liable for certain offences committed by a company; and 
• a mandatory requirement to provide new build home warranties.

The Building Safety Regulator operates as a division of the Health and Safety Executive (HSE).

The Building Safety Regulator’s role involves:

• overseeing the safety and performance of all buildings;
• overseeing the performance of all other building control bodies and building control approvers (previously known as approved inspectors);
• acting as the building control authority for work relating to higher-risk buildings;
• assisting and encouraging competence among the built environment industry; and
• enforcing failures by clients, designers and contractors to comply with obligations under the Building Safety Act.

An FMB member carrying out building work to buildings which are not categorised as “higher-risk” is unlikely to have day-to-day involvement with the Building Safety Regulator.

This is because the building control function for buildings which are not categorised as “higher-risk” is performed by building control approvers (previously known as approved inspectors), which may be Local Authority Building Control or a private sector provider of building control services.

The definition of “higher-risk” building is different depending on whether the building is in England or Wales.

In England, a higher-risk building:

• is a building which is at least 18 metres in height or has at least 7 storeys; and
• in either case, contains at least two residential units, or is a care home, or is a hospital.

In Wales, a higher-risk building:

• is a building which is at least 18 metres in height or has at least 7 storeys; and
• in either case, contains at least one residential unit, or is a care home, or is a hospital.

A higher-risk building can be a mixed-use scheme.

There are exceptions, and the regulations include detailed provisions for calculating the height and number of storeys in a building.

In England, the changes made by the Building Safety Act to the building control procedure include:

• a person carrying out construction work must give an initial notice to the relevant building control authority at least 2 or 5 days prior to the commencement of work, depending on the building type;
• a commencement notice must then be given within 5 days of the start of work, following which the building control authority has up to 4 weeks to give a rejection notice (if, for example, there is a concern whether the building work will comply with the Building Regulations once complete);
• if a rejection notice is given, no further work may be carried out until the issues have been resolved and the process repeated;
• during the lifecycle of a project, there are new requirements in relation to the giving of fire safety information and information regarding the appointment of principal designer and principal contractor; and
• on completion, the client, principal designer, and principal contractor are required to give a declaration to the building control authority to confirm compliance with the new dutyholder and competency regime, and to confirm that the works comply with the Building Regulations.

There also are extensive new requirements where building work is carried out in relation to an existing or new higher-risk building, which are outside the scope of these FAQs.

We expect similar changes will come into force in Wales shortly.

Not necessarily. Although it seems likely the principal designer and principal contractor will be same organisations or persons for the purposes of the Building Safety Act and the CDM Regulations 2015, this does not apply automatically and will be subject to the circumstances of each project.

In England, a client is required to:

• make suitable arrangements for planning, managing and monitoring a project so as to ensure compliance with all relevant requirements of the Building Regulations, and maintain and review these arrangements throughout the project;
• take reasonable steps to satisfy themselves that any person they permit to carry out design or building work has the relevant competence to carry out work in accordance with building regulations and to fulfil their duties under the Building Regulations; and .
• take reasonable steps to satisfy themselves that the principal designer and/or the principal contractor (where appointed) have the relevant competence to fulfil their duties under the Building Regulations.

Importantly for FMB members, if the client is a “domestic” client then the builder is required to fulfil the client obligations on behalf of the client (unless there is a Principal Designer which agrees in writing to do so). 

We expect similar changes will come into force in Wales shortly.

In England, a designer or builder carrying out work in relation to any building is required to have the skills, knowledge, experience and behaviours necessary or, in the case of a company, the organisational capability to carry out the relevant work in accordance with the Building Regulations.

The duties imposed on contractors and designers include:

• ensuring building work is carried out, planned, managed and monitored so as to be compliant with the Building Regulations;
• co-operating with the client and any other contractor or designer to the extent necessary to ensure that the work is compliant with the Building Regulations;
• taking all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the client, other designers and contractors to comply with all relevant requirements;
• considering any other work that directly relates to work being carried out and report any concerns of non-compliance with the Building Regulations; and
• if requested to do so, advising the client if the design or construction work involves a higher-risk building.

These duties and obligations are enhanced further for the principal designer and the principal contractor, as well as where the building work is carried out in relation to an existing or new higher-risk building. These enhanced duties and obligations are outside the scope of these FAQs.

We expect similar changes will come into force in Wales shortly.

Potentially, yes. A “designer” is any person who in the course of a business carries out any design work, or arranges for, or instructs, any person under their control to do so.

This applies as a matter of law, meaning it doesn’t matter what has been agreed between the client, any designer, the FMB member, and any sub-contractor.

Yes. The new duties and obligations apply whether you are a main or a sub-contractor.

Before employing a sub-consultant or sub-contractor, a main contractor must take all reasonable steps to satisfy themselves that any person they permit to carry out design or building work has the relevant competence to carry out work in accordance with, and to fulfil their duties under, the Building Regulations.

There is no formal guidance as to how to demonstrate compliance. The FMB believes all FMB members should prepare to be able to demonstrate competency to carry out building work in accordance with the Building Regulations by, for example, evidencing completion of relevant training and experience of equivalent or similar work.

During the lifecycle of a project, FMB members should implement a system for ensuring and evidencing building work has been carried out in compliance with the Building Regulations by, for example, maintaining a photographic record which should be retained for at least 15 years from completion.

The Building Safety Act extends the time within which claims can be brought against designers and builders in relation to defective work, regardless of what may have been agreed by those involved in the project.

The actual period of time varies depending on the type of claim, and the FMB considers retainng evidence for at least 15 years is necessary for most project types.

Possibly, but this will be contract specific and you should take independent legal advice if you are unsure.

The FMB is working on revisions to the contracts to reflect the BSA.

Non-compliance risks not only the commercial consequences of cost and delay, but enforcement by the building control approver or the Building Safety Regulator.

All building control authorities, for example, have the power to carry out intrusive investigations, open up works, and refuse to grant the completion certificate which may be        necessary for insurance, occupation or an onward transaction.

The Building Safety Regulator can give enforcement notices requiring non-compliant work to    be remedied by a certain date, and for all work on site to be stopped until the non-compliance is resolved. These notices can be given up to 10 years from completion of work.

A failure to comply with an enforcement notice can result in imprisonment and an unlimited fine.

In certain circumstances, including cases of non-compliance with the Building Regulations, the directors, managers and other officers of a company or other organisation can be    personally liable for an offence committed by a company.

The Building Safety Act has increased the risk profile for designers and builders significantly, and it is important that FMB members ensure adequate cover is in place. This will vary by project type, and FMB Insurance Services can advise you further. 

The Building Safety Act has established the New Homes Ombudsman scheme, which provides a procedure for owners of newly built homes to seek redress against developers and builders for issues such as defects.

Any developer of a new build home in England is required to provide the purchaser with a new build home warranty, which must last for 15 years. The cover provided by the new build home warranty must meet certain requirements.

The FMB considers it is best practice for all FMB members to take responsibility for ensuring on-going and up to date awareness and understanding of the Building Safety Act. Our webinar provides a starting point for this, and courses are available through a range of organisations including the Chartered Institute of Building, and the Construction Industry Training Board.

There are also many websites that give information regarding the Building Safety Act, including: 

• The Building Safety Act (full text)
• The Government 
• The Health and Safety Executive 
• The Chartered Institute of Building
• Local Authority Building Control