Chapter 1
Introduction
We are delighted to launch our new Building Safety (England) Toolkit: the new regulatory framework governing Higher-risk Buildings and changes to Building Control and the Building Regulations.
Purpose of this Toolkit
The purpose of this Toolkit is to help our clients to upskill and put in place strategies that will help them to comply with the new requirements – strategies that will necessitate changes in business culture, and include new practices, procedures, and policies – as well as a review of contractual arrangements.
Last year, we produced an Overview of the Building Safety Act 2022 (BSA Overview) one month after the Building Safety Act was published. Our understanding of this landmark piece of legislation, and the guidance that supports it, has evolved considerably in the (almost) 18 months that have passed since it received Royal Assent. Key parts of the Act are now in force, but our BSA Overview still delivers a useful overview of the primary legislation.
The genesis of the legislation
The origin of the new legislation can be summarised in one word – Grenfell. In just over two years (since 2021), we have seen two important pieces of legislation – the Fire Safety Act 2021 and the Building Safety Act 2022: together with the related secondary legislation, these two Acts of Parliament will deliver legislative change that affects the entire built environment in England on an unprecedented scale.
The magnitude of the changes ahead
The volume of new building and fire safety legislation that we see continue to emerge is mind boggling. The Building Safety Act itself is more than 250 pages long, and the Explanatory Notes that accompany it run to over 400 pages – and these do not include the raft of secondary legislation that provides the regulatory detail and gives effect to the new provisions. To date, 17 statutory instruments (that set out the secondary legislation) have been published in as many months, and many more will follow.
What does this Toolkit cover?
Our BSA Overview was focused on the new and expanded remedies that are contained in the Building Safety Act; remedies that came into force two months after Royal Assent, in particular Remediation Orders, Remediation Contribution Orders, Building Liability Orders and changes to the Defective Premises Act 1972. We also produced guidance on the very detailed provisions that were designed to deliver leaseholder protections.
This Toolkit is concerned with other provisions of the Building Safety Act, which are set out in Part 3 (Building Act 1984) and Part 4 (Higher-risk buildings) and in particular the secondary legislation that was published in August 2023 which relates specifically to
- the new regulatory framework that will govern higher-risk buildings in England and concern both construction work (procurement, as well as refurbishment and remediation works) and the occupational phase of the higher-risk buildings that are within the scope of the legislation;
- changes to the Building Control process; and
- wider changes to the Building Regulations 2010.
As much of the noise and news that surrounded the government’s flagship building safety campaign concentrated on higher-risk buildings, it is easy to forget that the wider scope of the changes ahead also relates to buildings that do not fall within the new definitions of higher-risk buildings. In addition, the changes to the Building Regulations affect all building projects. This Toolkit is therefore not just about higher-risk buildings.
How to use the Toolkit
For ease of reference, this Toolkit is broken down into a number of chapters, but it is not intended to provide a chapter and verse commentary on the new legislation. Instead, the Toolkit is intended as an aide-memoire that will steer our clients and help us to guide you through the maze of new regulatory requirements.
The table of contents at the beginning lists the chapters in the Toolkit. Each chapter has been written by one of the authors named in the Key Contacts section and includes an executive summary (This chapter – at a glance) at the beginning.
As a starting point, Chapter 2 reminds us of the definitions of a higher-risk building. Chapter 5 focuses on the new dutyholder roles and duties that will apply to the procurement of all construction work in England, whilst Chapter 12, at the end of the Toolkit, looks at the new duties that will be imposed on the dutyholders responsible for the management of occupied higher-risk buildings. Chapters 7-11 take us through the key features of the new ‘more stringent’ regulatory regime that will apply to the design and construction of higher-risk buildings. Chapter 6 looks at the transitional arrangements that are intended to apply from October 2023 to April 2024.
The new tranches of legislation are very much in their infancy and we will see industry bodies produce sector based guidance, construction bodies (such as the JCT) issue new suites of agreement and a new landscape of best practice develop over the next year to 18 months.
With more secondary legislation and guidance to follow, this Toolkit must be viewed as the start of a new journey, rather than the destination.
This Toolkit is a live document which we will add to and which will evolve over the coming weeks and months: we therefore urge you not to save this Toolkit as a PDF, but to return to it via the live link.
Be sure to save the link for the Toolkit as a favourite (Microsoft Edge) or bookmark (Google Chrome) by pressing ctrl+D or by clicking the ★ icon on the right side of the URL. This will make it easier to navigate back to the Toolkit in the future.
Government Consultations
The topics covered in this Toolkit were the subject of Consultations run by DLUHC in 2022 and 2023. Responses were accepted via online survey and via email. In relation to the first two Consultations below, DLUHC had, at the time the consultations closed in 2022, indicated that the Outcomes would be published in January 2023. All three Outcomes were published on 17 August 2023, along with the secondary legislation that was published in August 2023.
The Outcome documents give a clear indication of DLUHC policy and where the government is in the overall scheme of implementation: by way of example, the first Outcome below makes reference to a number of important pieces of guidance that have not yet been produced but are in the pipeline.
The new legislation at a glance
Mark London
"The scale of the changes required is, in one word, gargantuan."
Lee Russell
"The regulatory regime for ‘HRBs’ in England is vast. Duty holders now have a wealth of new responsibilities - and powers - in order to comply. Working out how they apply and where they might interact directly with residents will be the next challenge."
Matthew Cocklin
"We all knew that change had to happen. And it is happening. DLUHC has produced the legislation at breakneck speed. Stakeholders now need to get their heads around the detail."
Asif Patel
"The new HRB regime that applies to construction and refurbishment projects will involve a rethink of current procurement practices. The need to allocate front end costs for the design phase and the method of procuring projects going forward will require further consideration. In addition, the focus on information – creation, collection, collation – takes information management (and therefore asset management) to another level."
Kathryn Kligerman
"Not only do stakeholders have to get their head around these huge changes and the obligations that they introduce, but they also have to understand the quite significant sanctions for non-compliance. Understanding this backdrop is key to successful planning to ensure compliance is achieved."
Michael Wharfe
"The new framework transforms the law relating to the design and construction of all buildings and the operation of higher risk residential buildings. The rights and obligations of all those involved during the design and construction and the occupation phases of a building have now changed radically."
Mark Foxcroft
"The First-Tier Tribunal has been given important new powers and it is clear it is going to be instrumental in developing the law relating to building safety in the next few years.
This year, we have already seen the Tribunal in action: it has granted its first Remediation Order and Remediation Contribution Order and we expect to see many more in the near future as well as appeals under the Building Act 1984 from the Magistrates’ Court which have now been transferred to theTribunal."
Building Safety Act 2022: Devonshires’ Flagship Conference
The issues covered in this Toolkit will have an impact across the built environment in England. There are certain drafting issues that concern particular provisions in the subordinate legislation, but this is not surprising given that the statutory instruments were developed and published at breakneck speed. We are in touch with DLUHC and have sought clarification regarding specific aspects of the secondary legislation.
We are putting on a Flagship Conference on Monday 30 October 2023 to discuss the issues arising out of this Toolkit. We very much hope you will join us.
Tel: 020 7628 7576
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@Devonshires 2023
Copyright in this publication belongs to Devonshires Solicitors LLP. The content of this publication is current as at the time of publication. It is intended as guide to the subject matter and not as legal advice, and it should not be construed as the giving of legal advice. For further information, please email one of the contacts named at the end of this publication.