The Building Safety Act Explained

On 14^th June 2017 just before 1am, fire broke out in the kitchen of a fourth floor flat at the 23 storey Grenfell Tower in North Kensington, West London. Within minutes, the fire had raced up the exterior of the building and then spread to all four sides of the building. Seventy-two people died in the fire with more than 70 people injured. Following the catastrophic events of that night, it became clear that there was a need for government to step in and to change building legislation for high rise buildings so that a tragedy such as Grenfell Tower never occurred again.

Following the Grenfell Tower fire an independent review of the building regulations and fire safety was carried out, and the recommendations of the review, which were published in May 2018, led to a Bill being proposed in Parliament in the House of Commons Session 2021 – 22, with the view to overhauling existing regulations governing the building and / or development industry, which were viewed by many as being defective. The successful passage of this Bill through Parliament led to the Bill being passed and it becoming law, this Act is known as the Building Safety Act 2022. In this article we will examine the Building Safety Act 2022 in more detail and its application to landowners, developers and other stakeholders. 

What is The Building Safety Act?

The Building Safety Act 2022 (BSA 2022) affects building owners / managers and the built environment industry, and this includes those who commission building work and those who participate in the design and construction process, including clients, designers / architects, and contractors, these are known as duty holders. It places new obligations for duty holders, building owners, and landlords, and although primarily focusing on higher-risk buildings, such as high-rise residential buildings as defined under section 65 and section120D of the Building Safety Act 2022, the principles of safety and responsibility can extend to other types of residential properties as well.

The Building Safety Act 2022 (BSA 2022) has six parts with the majority of the substantive detail and reforms set out in parts two to five, these parts are:

• Part 1: Introduction
• Part 2: The Regulator and its Functions
• Part 3: Building Act 1984
• Part 4: Higher-Risk Buildings
• Part 5: Other Provision about Safety, Standards, etc.
• Part 6: General

The BSA 2022 establishes a clearer regulatory framework to ensure that buildings, especially high-rise ones, are built and maintained with safety as a priority. It also ensures that residents in high-rise buildings will have more say in how their building is kept safe and will be able to raise building safety concerns directly to the owners and managers of their buildings. The aim of the Act was to overhaul existing legislation and regulations to create industry-wide, lasting change, and it focuses on:

• The safety and standards of all buildings
• Assuring the safety of higher-risk buildings during construction and occupation
• Improving the competence of the people responsible for overseeing, managing, and delivering works to higher-risk buildings
• Ensuring clearer standards and guidance
• Putting residents at the heart of a new system of building safety

The BSA 2022 places residents’ safety at its heart, with the new gateway process providing certain hold points over the course of high-rise building development to ensure that safety is considered at each stage of the building control process. These gateways allow the regulator to review building safety and building regulations compliance throughout projects relating to high-rise buildings.

There are a number of pieces of key legislation and regulations that the Building Safety Act 2022 (BSA 2022) amends and enhances, although it does not fully replace any one piece of legislation, these include:

The Building Act 1984 – the BSA 2022 introduces several changes, including introducing more stringent oversight for higher-risk, high-rise residential buildings; revising the role and functions of building control authorities and empowering the new Building Safety Regulator to enforce building safety standards.

The Building Regulations 2010 – the BSA 2022 amends these regulations by imposing stricter requirements for fire safety and structural integrity, especially for high-rise residential buildings and introducing more detailed safety measures and obligations for duty holders during the construction and operation of buildings. It also strengthens the competency requirements for those involved in building control processes.

Fire Safety Act 2021 – the BSA 2022 introduces new requirements for fire risk assessments in high-rise buildings, strengthening the accountability of building owners to comply with fire safety standards. Together these two Acts improve fire safety measures in high-risk buildings by clarifying the responsibilities of building owners in multi-occupancy residential buildings regarding the inspection and maintenance of external walls and fire doors.

Regulatory Reform (Fire Safety) Order 2005 – the BSA 2022 and the RRO work together to strengthen fire safety measures, especially with respect to external cladding and other high-risk materials and to ensure that fire risk assessments are effectively carried out in high-rise residential buildings.

Landlord and Tenant Act 1985 – the BSA 2022 introduces specific amendments to ensure that landlords are held responsible for maintaining the fire safety of residential buildings and to make sure that leaseholders are protected from being unfairly charged for historical safety defects, such as cladding removal and other fire safety work.

Housing Act 2004 – the BSA 2022 enhances the Housing Health and Safety Rating System (HHSRS) framework that was established by the Housing Act to assess potential health and safety risks in residential properties. The BSA 2022 imposes stricter requirements on landlords and building owners to address health and safety hazards in high-rise buildings to ensure that housing standards are aligned with the new safety obligations introduced by the BSA 2022.

Defective Premises Act 1972 – the BSA 2022 extends the limitation period for bringing compensation claims for defective work in building construction from 6 years to 30 years for existing buildings and from 6 years to 15 years for new builds.

Health and Safety at Work etc. Act 1974 – the BSA 2022 has created a new Building Safety Regulator within the Health and Safety Executive (HSE) with the authority to enforce building safety requirements in high-rise residential buildings. We will examine the role of this new Building Safety Regulator in more detail later in this article.

There are also a number of pieces of secondary legislation associated with the BSA 2022. Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation). These details provide practical measures that enable the law to be enforced and operate in daily life. Secondary legislation can be used to set the date for when provisions of an Act will come into effect as law, or to amend existing laws.

The BSA 2022 assigns specific legal duties and responsibilities on those who procure, plan, design, manage and undertake building work, to ensure safety throughout the lifecycle of a building, these people are known in the Act as the duty holders, building owners, and landlords.

We begin by looking at the new duty holder roles and responsibilities under the BSA 2022, duty holders are:

• The client (including domestic client), the client is the person responsible for commissioning the building work and they have overall control over the project
• The principal designer and the principal contractor, as well as duties on designers (including the sole or lead designer)
• Contractors (including sole contractor).

Duty holder legal duties and responsibilities include:

• Being able to demonstrate the necessary competence requirements for duty holders involved in the construction, refurbishment, and maintenance of higher-risk buildings, and they are required to only undertake work within the limits of their competence. They must also ensure that that all workers are properly trained and qualified to meet safety standards.
• Being able to demonstrate compliance with building regulations at all stages of a building’s development, such as at design, construction, and occupation including compliance with the Gateway Process
• The mandatory reporting of safety issues and any serious safety risks that could affect building safety, ensuring early intervention and preventing hazards from escalating.
• Engaging with residents and ensuring they are informed about building safety issues including providing residents with information about building risks, safety measures, and how they can contribute to maintaining safety.
• Maintaining a Golden Thread of critical building safety information ensuring that the information is accurate, easily accessible, and preserved throughout the building’s lifecycle.

Building owner’s legal duties and responsibilities include:

• Appointing an Accountable Person (AP), this person is responsible for ensuring that building safety risks, especially fire and structural risks are properly managed.
• Creating and maintaining a Building Safety Case, which is a formal document outlining how safety risks in the building are managed. Keeping it up-to-date and submitting it to the Building Safety Regulator (BSR) for assessment.
• Obtaining a Building Safety Certificate from the BSR, this certifies that the building meets the required safety standards
• Conducting regular and thorough fire risk assessments, particularly focusing on high-rise buildings ensuring compliance with fire safety regulations, and promptly addressing any issues identified
• Maintaining the golden thread of safety information after construction is complete, ensuring that all relevant safety information is updated and stored digitally, with easy access for the BSR and relevant stakeholders
• Establishing a system to keep residents informed about the safety measures including how to report safety concerns and establishing a process for consulting them on building safety issues
• Taking prompt action to remedy any safety risks or defects that are identified

Landlord’s legal duties and responsibilities include:

• Meeting the fire and structural safety standards outlined in the BSA 2022 and regularly assessing and addressing safety risks, especially in high-rise buildings
• Establishing a formal system of engagement with residents to ensure that they are aware of safety measures and procedures in their building
• Implementing and maintaining a Building Safety Management Plan. This document outlines how the building’s safety is managed, including details on fire safety measures, structural safety procedures, and ongoing maintenance.
• Providing residents with all necessary safety information, including details on the fire safety procedures, evacuation routes, and any ongoing maintenance that may affect safety

The BSA 2022 places a strong emphasis on accountability and transparency throughout the lifecycle of a building and there are severe penalties for failure to comply with the Act.

When was The Building Safety Act introduced?

On 5^th July 2021, a Bill to make provision about the safety of people in or about buildings and the standard of buildings, to amend, enhance, and add to the existing regulatory framework governing building safety in the UK and to amend provision about complaints made to a housing ombudsman, was submitted to parliament, this was known as the Building Safety Bill.

Once a bill has completed all the parliamentary stages in both Houses of Parliament, it is ready to receive royal assent. Royal Assent is the final step required for a Parliamentary Bill to become law. The Building Safety Act 2022 (BSA 2022) was granted Royal Assent on 28^th April 2022, and the Act came into force from 1st April 2023.

Changes to the Act including introducing new duty holder roles impacting all stakeholders involved in a construction project came into force on 1^st October 2023, with all other changes that are known, to be in force on or before 15^th March 2025. There are other changes to the Act that may be brought into force at a future date, as yet undefined.

What buildings does the Building Safety Act apply to?

Building Safety Act 2022 (BSA 2022) currently applies to residential higher-risk buildings (HRBs), these are buildings that:

• Are over 18 metres or seven storeys in height
• Contain at least two residential dwellings and at least 11 metres in height or has at least five storeys (whichever is reached first) 
• Includes hospitals and care homes

Secure residential institutions for example prisons, and military premises for example military barracks and buildings containing accommodation provided by the Ministry of Defence (MoD) are at present excluded from provision of the BSA 2022, and currently, there are no plans to extend the BSA 2022 to cover all buildings however, the legislation has the flexibility for more buildings to be brought into its scope over time.

What does the Building Safety Regulator do?

The Building Safety Act 2022 (BSA 2022) introduces significant changes to the way in which building safety is regulated, with significant consequences for developers, owners, landlords and tenants of all residential buildings and not just higher-risk buildings. The Government named the Health and Safety Executive (HSE) as the new Building Safety Regulator (BSR) with extensive new powers of regulation, inspection and enforcement. These new powers and responsibilities ensure the safety of all buildings, and the BSR has additional responsibilities for higher-risk buildings. These additional powers apply not only to the design, construction and refurbishment of such buildings, but also to their ongoing safety management while they are occupied, so that residents are safe, and feel safe in their homes.

The BSR is an independent body and can give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents. If residents feel their safety concerns are being ignored by building owners / managers, they can raise them with the Building Safety Regulator.

The primary functions of the BSR are:

• To oversee the safety and standards of all buildings.
• To help and encourage the built environment industry and building control professionals to improve their competence.
• To lead the implementation of the new regulatory framework for high-rise buildings.

The BSR is responsible for:

• Setting standards for the design and construction of higher-risk buildings
• Helping accountable persons manage building safety
• Overseeing the registration of building control bodies and professionals

There are a number of other responsibilities that the BSR takes on, including being a statutory consultee for planning applications, providing duty holders with clear accountability and statutory responsibilities, and crucially, enshrining the golden thread of building information. We will be examining the golden thread of building information in more detail later in this article.

The BSR carries out its function as the Building Control Authority through teams that include a registered building inspector and any other specialists required to assess a building control application submission. These are called multi-disciplinary teams (MDTs). The BSR leads these teams to ensure effective regulatory decisions, guide the structure of an inspection schedule and input to any requirements (conditions) that may be applied to an approval. This is not new in terms of assessment of plans and site inspection, but it is a new method of delivery. 

To strengthen regulatory oversight, building work on these higher-risk buildings will have to pass through a rigorous process consisting of three gateway points. BSR approval must be obtained:

• Before starting building work (Gateway 1) ensures fire safety is considered at the planning stage.
• Before significant changes are made during construction (Gateway 2) ensures detailed design and safety checks are conducted before construction starts.
• When building work is completed (Gateway 3) ensures that the building is safe for occupation before it is handed over.

It is an offence to start building work without the BSR’s approval and the regulator has enforcement powers to take action where breaches occur. Provisions included in the BSA 2022 (section 38) enable building control and for the BSR to issue compliance notices (requiring non-compliant work to be remedied by a set date) and stop notices (requiring work to be halted until serious non-compliance is addressed).

These provisions are broader in scope than previous enforcement notices since they relate to non-compliance with the building regulations as a whole, rather than just matters relating to fire safety, and are intended to apply at an earlier stage, for example, to prevent dangerous non-compliant work from being continued or completed where there is a risk of serious harm to people.

Failure to comply with compliance and stop notices is a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine. Failure to comply with an enforcement notice is similarly a criminal office, with a maximum penalty of up to two years in prison and an unlimited fine.

One of the new notable powers in the BSA 2022 is the ability of the BSR to now prosecute individuals of corporate bodies in certain circumstances. These offences introduced by BSA 2022 sections 40 and 161 are broad in scope.

Accountable people in building

As we have seen, building owners are legally responsible for appointing an Accountable Person (AP) and a Principal Accountable Person (PAP) where there is more than one Accountable Person in a building. The AP is defined as the person who is in possession of the common parts of a building, for example corridors or lobbies, or has the relevant repairing obligation. The underlying purpose of the AP is to create a clear line of responsibility for the safety of a building.

The AP is responsible for taking steps to prevent any building safety risks occurring. They must also assess the building safety risks relating to the building and demonstrate how they are meeting this ongoing duty via a Safety Case Report, they must also prepare a Residents’ Engagement Strategy to promote the participation of residents in the making of building safety decisions, and establish a framework and process for reporting mandatory occurrences to the BSR. Finally, an AP must apply for and display a Building Assessment Certificate.

The Digital Golden Thread

To ensure that duty holders identify, understand, manage, and mitigate building safety risks throughout a higher-risk building’s life-cycle, those responsible for building safety must now under the BSA 2022 maintain a digital, secure and easily accessible ‘Golden Thread of Information.’ The golden thread is not an end of the project activity, but an ongoing, live, digital record of the building information throughout the lifecycle of the building, and needs include to up-to-date safety information regarding the building design, build, and management, giving a clear accountability trail to reduce risk and to improve safety.

The purpose of the golden thread is about the right people having the right information when they need it, in order to understand the building and the steps needed to keep both the building and the people living in it safe. The extent of information to be kept depends on the building’s stage, with a focus on compliance with building regulations during design and construction.

Under the BSA 2022, owners / managers are required to collect, monitor, and manage data on their buildings, and how safety risks are being managed to satisfy the golden thread of information’s obligations, and to provide the evidence for their safety cases.

The golden thread needs to be created before building work starts and the information must be kept updated throughout the design and construction process. When the building work is completed, the golden thread must be handed over to the AP or PAP who is responsible for the occupied building.

The golden thread of information must be:

• Kept digitally
• Kept securely
• A building’s single source of truth
• Available to people who need the information to do a job
• Available when the person needs the information
• Presented in a way that can be easily used
• Acknowledged by recipients of information

Each golden thread of information will be individual, bespoke, and specific to the building and to the group of residents and occupants.

Conclusion

The Building Safety Act 2022 is the biggest change in building legislation for decades, and there may well be further changes and amendments to the Act as the new building safety regime beds in. However, the increased regulatory oversight provided by the Act helps to mitigate risks in relation building safety and ensures that buildings are designed, constructed and maintained with safety as a top priority.