13th September 2021
On 5 July 2021, the government finally introduced the Building Safety Bill to Parliament, heralding the next step in its proposals for fundamental reform of building safety. A draft Bill was first published in July 2020. According to the explanatory notes, the Bill’s objectives are to learn the lessons from the Grenfell Tower fire and to remedy the systemic issues identified by the Hackitt Independent Review of Building Regulations and Fire Safety, by strengthening the whole regulatory system for building safety.
The Bill affects all those involved in the built environment industry, in addition to building owners, residents and homeowners. Walker Morris’ Regulatory & Compliance and Construction & Engineering specialists summarise the key elements of the Bill and offer their practical advice.
Related to the Building Safety Bill, changes to the planning system (‘planning gateway one’) came into effect on 1 August 2021. For certain high-rise buildings, developers will need to submit a fire statement with their planning permission applications setting out fire safety considerations specific to the development.
The Bill itself is a substantial and complex piece of draft legislation. According to the government’s indicative timetable, it will take at least nine months to become law. Changes intended to come into force in the first 12 months of operation include the extended time period for bringing DPA claims, changes to the Fire Safety Order and additional powers for construction products regulation. The remaining provisions are expected to come into force within a further six months, by around the autumn of 2023.
There is ongoing controversy surrounding protection for leaseholders facing crippling bills for remedial work as a result of the cladding scandal, with continuing uncertainty as to how and when issues of legal liability for those costs will ultimately be resolved. Fifty-five MPs spoke during the second reading of the Bill on 21 July 2021, many in moving terms about their constituents who are, as leaseholders, facing these crippling bills.
Campaigners fear that the Bill’s redress provisions will do little to address the current crisis, with leaseholders unable to afford the costs of bringing DPA claims against large and well-funded defendants, developers becoming insolvent, and the defective work itself falling outside the 15 year period in some cases. We can expect this to be the subject of fierce debate in both Houses of Parliament. The Bill is now at the committee stage, when detailed line-by-line examination takes place. Walker Morris will continue to monitor and report on developments as more details become known.
The message is clear that building safety can no longer be seen as a tick-box exercise, and at least to some extent the importance of increased regulation is acknowledged in the Bill. As a matter of general good practice, the spirit of the reforms can flow through in the actions dutyholders take now in the day-to-day conduct of their business.
While the content of the Bill may change as it passes through Parliament and implementation is probably a couple of years away, the fundamentals behind the new regime are here to stay. Dutyholders can start to put the groundwork in by familiarising themselves with the Bill and proposed obligations at each stage of a building’s lifecycle, and considering what resources will be required and the procedures, policies and processes that will need to be put in place. Safety related proposals can be considered and potentially incorporated in existing safety arrangements in anticipation of the Bill becoming law with appropriate training and upskilling being adopted where necessary.
Developers in particular, in light of the proposed 15 year time period for bringing DPA claims, should prepare in advance by reviewing both their potential exposure to such claims (including retaining potentially relevant documents) and their ability to claim against third parties.
They should review and plan ahead to update third party contractual arrangements/protections and professional indemnity cover accordingly, and ensure that document retention and other relevant policies/processes are amended to reflect the longer time period. Finally, they should ensure that they have the necessary systems in place to comply with the new planning gateway one requirements.
As the Bill proceeds through Parliament, affected parties can also raise any concerns directly with MPs and/or industry and other bodies.
Whatever your role in a building’s lifecycle, we have experts who can help. If you have any queries or concerns on any aspect of the Bill, or need any advice or assistance, please contact one of the team below. Leaseholders should get in touch with Paul Hargreaves directly.
 In Rendlesham Estates Plc and others v Barr Limited  EWHC 3968 (TCC), one of Walker Morris’ cases, the court gave guidance on the interpretation of certain DPA provisions, including the meaning of ‘dwelling’ and ‘fit for habitation’. For a dwelling to be fit for habitation it must, on completion, be capable of occupation for a reasonable time without risk to the health or safety of the occupants and without undue inconvenience or discomfort to the occupants. A dwelling may be unfit for habitation even though the defect which makes it so is not evident at the time of completion. What is a reasonable time will depend on the nature of the defect.
 The government is consulting until 15 October 2021 on the design and calculation of the proposed ‘Building Safety Levy’.
 The Building Regulations Advisory Committee recently published a report providing an overview of the development of golden thread policy.
 The Construction Industry Council recently launched the Building Safety Alliance, an independent and industry-led not-for-profit organisation, with the purpose of implementing the certification of competent individuals wishing to deliver the role of building safety manager and a publicly accessible register of those certified by the scheme.
Construction & Engineering
Construction & Engineering
Construction & Engineering