Building Safety Act 2022 – which provisions made the cut?

The Building Safety Bill has finally finished its legislative journey. On 28 April 2022 it was granted Royal Assent, thereby becoming the Building Safety Act 2022 (the Act). Given the size of the Act, it's no surprise that it took a few days to work out which of the many proposed amendments to the Bill had made it into the final cut and are now enshrined in law. Over the next few months we can expect to see the various provisions in the Act being brought into force - on 19 May 2022 the first of the commencement provisions were published which, among other things, brings section 31 of the Act, in relation to sections 120D to 120H of the Act on higher-risk buildings in England, into effect next month on 28 June 2022.

Following the delayed publication of the Act last week, we have been examining which of the provisions upon which we previously blogged are still in there, and whether there are any last minute additions to the new regime.

• Remediation Orders and Remediation Contribution Orders

The concept of remediation orders and remediation contribution orders made it into the Act. By way of a reminder, a remediation order requires a landlord to remedy defects arising from (i) the construction of the building, (ii) works carried out to it in the period of 30 years ending on 28 June 2022 (the commencement date of these particular provisions), or (iii) any works undertaken after that date to remedy an identified defect.

An order can be served in respect of residential buildings that contain at least two dwellings, are at least 11 metres tall or have at least five storeys, which is a wider definition than that which is used to classify "higher-risk buildings" that have to comply with the new regime governing the management of building safety risks going forwards.

A remediation order can only be served on a landlord if the landlord is required by the terms of the lease (which must be a long lease exceeding 21 years and granted before 14 February 2022) to repair or maintain anything relating to the relevant defect, and for the purposes of these provisions, the term landlord could include any person who is party to the lease otherwise than as landlord or tenant, so for example, a management company who is subject to these responsibilities.

A remediation contribution order  that requires payment to be made in respect of remediation works, can also be served on landlords (current or historic if they were the landlord as at 14 February 2022), developers who undertook or commissioned the construction of the building or any person associated with a landlord or developer, which includes group companies, beneficiaries of a trust that holds the interest in the relevant building and partnerships.

• Prohibitions on development and building control approval

This was one of the most radical additions to the Bill, and allows the Secretary of State to prohibit a person from carrying out development due to safety concerns, even where planning permission for the development has already been granted. These provisions in the Act are largely as introduced in the Bill, but with further detail provided as to who might be subject to such a prohibition, with particular focus being placed on those persons within the building industry who are eligible to join any building industry scheme established by the government which intends to secure the safety of buildings and improving standards (as set out in section 126 of the Act), but who have failed to participate in the scheme.

• Building Safety Indemnity Scheme

The proposal contained in the previous draft of the Bill to apply a system of levies to raise contributions towards costs incurred by leaseholders in remedying defects doesn't appear in the Act, perhaps in part due to the fact that a tentative agreement has been reached between the government and the building industry as to the funding of such remediation works, without having to resort to a public register of persons liable to make levy payments, as had been suggested in the draft Bill.

• New build home warranties

This is a late addition to the Act and had not appeared in the previous iterations of the Bill. In essence, it requires developers of new build homes to provide a warranty to the purchaser of the freehold or long leasehold interest that is valid for 15 years from the date on which the interest is granted.  The warranty will see the developer agreeing to remedy defects, or cover the costs of such remediation works and to maintain insurance cover in respect of these obligations.  There are financial penalties that can be imposed on a developer who fails to provide a warranty as required by the Act.

Obviously given that the Act runs to over 250 pages in length, the above is only a snapshot of the sorts of provisions that we will see implemented over the coming months and years. In terms of the timeline for the commencement of these provisions, there are very few which take effect immediately, and there will be a significant amount of secondary legislation required to fill in the gaps as to how these provisions will work in practice. However, some do take effect relatively soon, and with effect from 28 June 2022, the government will be able to introduce regulations establishing the Remediation Order and Remediation Contribution Order regime. In addition, from the same date, the extension of the limitation period for a claim that is brought under the Defective Premises Act 1972 will apply, meaning that this is extended (retrospectively) to 30 years from the date on which the action accrued.

In a related development, the government has also now commenced certain provisions under the Fire Safety Act 2021 which means that with effect from 16 May 2022, the structure, external walls and flat entrance doors of multi-occupied residential buildings fall within the scope of the Fire Safety Order, meaning that those parts of the building will have to be included in any fire risk assessments carried out by a responsible person under the Order.

Although the passing of the Act into law feels like the culmination of a huge amount of work, it is really only the start of the process of improving building and fire safety that the government has committed to. We will have to watch this space to see what comes next.

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