The Building Safety Act 2022 is intended to improve the design, construction and management of higher-risk buildings which are defined as those which are at least 18 metres tall or have at least 7 storeys, and contain at least two residential units. It is a long and complex Act, but amongst the key provisions implemented in 2023 are:

Registration of Higher-Risk Buildings: All higher-risk buildings must now be registered with the Building Safety Regulator ('BSR') via the Government's website. It is a criminal offence not to have registered in-scope buildings and it is an offence to allow residents to occupy an unregistered high-rise residential building in England. The register of higher-risk buildings is due to be made public in 2024. Registration is the responsibility of the 'principal accountable person' – this is usually the party that owns or has a legal obligation to repair the structure and exterior of the building.

Gateway process: This ensures that those involved in a project address building safety issues at three distinct points (gateways) during the design and construction process:

Planning Gateway One: Introduces a requirement to show that all fire safety matters are addressed early at the planning stage for any higher-risk residential building.

Gateway Two: Occurs prior to any construction work commencing on a higher-risk building. It is a 'hard stop' and construction cannot begin until the BSR is satisfied that the design meets the requirements of the building regulations.

Gateway Three: Once work on a higher-risk building has finished, the BSR assesses whether the work has been carried out in accordance with the building regulations. Only once Gateway Three has been passed can the building be registered with the BSR and occupation of the building allowed.

It will be the responsibility of the client to submit the approval applications to pass the Gateways. It is currently estimated that it will take 12 weeks for the BSR to approve applications to pass Gateways 2 and 3. Consequently, there is now a big exposure for projects to be delayed in passing Gateways 2 and 3, and this will need to be factored into procurement timetables and the allocation of parties' responsibilities and liability for delay.

Golden thread: There is a requirement for complete records of higher-risk buildings to be available from those who have been involved in constructing the building, including those who manufactured the components used, and manage the building.

This data is required to be stored digitally and must be accurate, easily understandable, up to date and readily accessible. The golden thread of record keeping will be available to all relevant parties – residents, emergency services and potential purchasers. It will clearly become a key document in future transactions and is one that will need to be created at the outset of construction.

The golden thread will need to be updated 'real time' which includes following any rectification or remediation works – it is an ongoing undertaking which the client will need to ensure is properly discharged.

Safety case reports: The Act introduces the need for safety case reports to be prepared for all higher-risk buildings. The report must be prepared by the principal accountable person and identify the building's safety risks and explain how the risks are being managed. Building safety risks are the risk of the spread of fire or structural failure. These reports will need to be updated to cover any improvement works or when work to the building impacts building safety risks. Again, these will become a key document in future transactions.

Remediation Contribution Order: Section 124 of the Act entitles the First-tier Tribunal to make a "remediation contribution order" against a landlord or developer of an in-scope building (one which contains at least two dwellings, and is either at least 11 metres tall, or with at least five storeys), or any "person associated with" the landlord or developer to contribute towards the costs of fire remediation works.

Building Industry Scheme: Section 126 of the Act enables the Secretary of State to make regulations to establish a building industry scheme to secure the safety of people in relation to risks arising from buildings and to improve the standards of buildings. It is thought that the membership of this scheme will be comprised of those developers who have signed the Government's Pledge. Any developers who have not yet signed the Pledge will now feel under great pressure to do so. Sections 128-129 of the Act hint at the importance of becoming a member of the building industry scheme by granting the Secretary of State wide powers to prohibit people from carrying out development in England and from obtaining building control approvals for developments.

  • Enforcement/Liability: For all offences under the Act, if the offence is committed by a corporate body with the 'consent or connivance' of a director, manager or other similar individual (or is attributable to their neglect), that individual may be prosecuted as well as the corporate body. This potentially puts all senior persons involved in the construction and management of buildings at risk of criminal prosecution in the event of non-compliance with the Act.

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