Ho Ho Hold on to your hard hats - Recent developments in Building Safety

Those of you who joined us for Christmases past will recall that the Building Safety Act 2022 (BSA) has been a topic of keen discussion since its implementation in July 2022.  In today's blog we take a look back at some of the developments we've seen this year in the world of building safety, and take a glimpse into (Christmases) future, with the government's recently announced plans to expedite the remediation of unsafe buildings over the coming years.

Looking back over 2024

For those buildings under construction, or which are proposed to be constructed, 2024 saw the end of the transitionary periods for several of the new regulations.

For higher-risk building projects (HRBs), where building control applications had been made prior to 1 October 2023, works had to be significantly progressed by 6 April 2024 (i.e. the pouring of concrete for the permanent placement of the trench, pad or raft foundations, or the permanent placement of piling, must have begun – or for works to existing HRBs, the works must have started), otherwise the works transferred to the Building Safety Regulator's (BSR) oversight under a modified version of the new gateways regime.

For projects of any type subject to the building regulations, where building control applications were made before 1 October 2023, they had to have started by 6 April 2024 in order for the new dutyholder requirements not to apply (see Building Safety Act duties - not just for residential projects for further details).

Approved Inspectors had to be registered with the Building Safety Regulator as Registered Building Control Approvers (RBCAs) by 6 April 2024 to continue to operate and issue new building control initial notices for non-HRBs. Where Approved Inspectors failed to register as RBCAs by the deadline this caused problems for numerous projects across the country, particularly for HRBs where projects have transferred to the BSR's jurisdiction part way through the works.

For projects not covered by transitional provisions, the parties involved are now navigating the new Building Safety Act regime. The industry is adapting to the new requirements of the dutyholder roles under Part 2A of the Building Regulations, and those carrying out works to HRBs must now submit their building control applications to the BSR. As has been widely reported in the industry press, the BSR approval process has experienced significant delays, with most applications taking considerably longer than the statutory timeframes to receive approval.  Hopefully 2025 will see a more streamlined process developing.

Aside from the advent of a new regime of building safety for new developments, there have been a steady stream of cases making their way through the courts this year pursuant to powers in the BSA, which are addressing the liability for historic safety defects.  Remediation orders and remediation contribution orders have been made against landlords and developers, with the cases we've seen this year (and on which further detail can be found here) evidencing the government's willingness to utilise all the powers available to it to ensure that leaseholders are not left with the responsibility of funding the remediation of unsafe buildings. In light of this trend, the announcement last week of the government's Remediation Acceleration Plan (RAP), is therefore not a huge surprise…

Looking forward to 2025 (and beyond)

On 2 December, the government announced its ambitious proposals to accelerate the current rate of the remediation of residential buildings suffering from safety risks, and more specifically, unsafe cladding.  Regular readers of our blog will be aware that the government has been using a number of methods to require owners and developers of unsafe residential buildings to remedy these defects. This includes action in the courts, and by requiring the major housebuilders to enter into a self-remediation contract with the government in which these developers committed to removing unsafe cladding from residential buildings and remedying other defects.

However, the government does not feel that the pace of progress to date has been sufficient, and in issuing their RAP, is setting stretching targets for developers to have "started or completed remedial works on 80% of the buildings for which they are responsible by July 2026 and on 100% of those buildings by July 2027".

The RAP has three objectives: (i) to fix buildings faster, (ii) to identify all buildings with unsafe cladding and (iii) to support residents with the financial and other burdens which continue to weigh them down whilst remediation remains uncompleted.

The government has a multi-faceted plan to achieve the first objective, including:

• legislating to create a clear and legal duty on those responsible for buildings 11m and over (known as "relevant buildings") to take the necessary steps to fix their buildings within clear timescales. In order to strongly encourage action on the part of those undertaking remediation, the government is promising "significant financial consequences for inaction and a new criminal offence for those who ultimately fail to remove unsafe cladding".
• Providing additional funding to those agencies responsible for pursuing enforcement action against those owners and developers that fail to comply with their duties, by funding a doubling of enforcement activity by local authorities, and working with the BSR to ensure the regulator has sufficient capacity to carry out its many duties.
• Legislating to require the legal owners of relevant buildings to disclose their beneficial ownership structure, and improve transparency as to the ultimate owners (and controllers) of these assets.  The RAP refers to "expanding the existing building register" in order to include this ownership information, which would appear to indicate that the same disclosures would be required in respect of the ownership of HRBs already on the register.

Objective (ii) will primarily be tackled by legislating to require the registration of relevant buildings.  In this way, the current lacuna in the registration requirement, which means that only those buildings above 18m with defects are being identified by way of the registration system, will be closed, with relevant buildings also coming under the remit of the BSR.  What is not yet clear is whether relevant buildings will also be subject to the ongoing safety management requirements that apply to HRBs pursuant to the BSA, or whether the purpose of this registration is simply to identify all relevant buildings that may be subject to safety defects to ensure that they are remediated.  Again, given current delays in dealings with the BSR, it remains to be seen whether (even with the additional funding promised above) there will be capacity in the system to process another raft of registrations.

The final objective will aim to mitigate the effect of remediation on leaseholders, by asking developers to sign up to the government's Code of Practice for the remediation of residential buildings.  Adherence to the Code of Practice is one of a number of commitments which a number of major developers have made by virtue of a Joint Plan made with the government in which all parties agree to work together to accelerate the work required to remediate these buildings and to improve the resident experience of remedial works.  The Joint Plan does not amount to a legally binding obligation, nor is it a variation of the terms of the self-remediation contracts which a number of these developers have entered with the government, but it is a statement of intent that developers are willing to work with government to advance this process as swiftly as possible.

The RAP also provides an update on the long-promised Building Safety Levy, the aim of which is to raise funds to remediate building safety defects, thereby protecting leaseholders (and the taxpayer) from having to fund these works.  The levy will be charged on all new residential buildings in England that require building control approval (with certain exemptions) and the government intends to bring the levy into effect in Autumn 2025.  No further detail has been provided as part of the RAP as to the nature of developments that might be exempt from the levy, but in the previous government's response to its most recent consultation (issued in January 2024 and which you can read more on here) developments with fewer than 10 units, affordable housing, NHS facilities and care homes were amongst the developments that would be exempt.  However, BTR and PBSA developments were in scope, and it remains to be seen whether the Labour government will adopt the same approach.

What is not in doubt is that the building safety regime continues to grow and move at pace, and 2025 will be another busy year for those seeking to operate in the residential market.

Join us again tomorrow for a review of the Providence v Hexagon case - a key decision on termination in the construction sector.