The Building Safety Bill currently making its way through the UK Parliament represents the most significant changes to the building control regime since the Building Act 1984.
The bill's current provisions may still be revised in its passage through parliament. However, with the legislation likely to come into effect in the first half of this year, it makes sense to start planning now for its eventual implementation.
A new regulatory framework
Clause 2 of the bill establishes that the Health and Safety Executive will be the building safety regulator (BSR) in England. The BSR will act independently of the industry and government with its own powers, strategic plan and programme of work.
The new regulator's role includes implementing a stricter regime for high-risk buildings, overseeing the safety and performance of all buildings, supporting and encouraging competence in the built environment professions, and helping residents. There is also a new regulatory framework outlining roles and responsibilities, contained in a new section 2A of the 1984 Act.
New sections of the 1984 Act numbered 58A to 58Z(8) and introduced by section 2A will include the following provisions.
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Individuals can be registered as building inspectors. Such professionals advise others involved in building control on exercising this function.
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Individuals can also be registered as building control approvers. Before exercising specified and restricted building control functions, these approvers will be required to obtain and consider advice from registered building inspectors. The building control approver role replaces that of the current approved inspector. Approved inspectors may register as building inspectors, building control approvers, or both.
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The BSR must establish and maintain a register of those holding these roles. It must prepare and publish a code of conduct setting out the standards and best practice expected of registered building inspectors, as well as professional conduct rules for building control approvers. The BSR may investigate any instance of professional misconduct or contravention of these rules. If required, the BSR can make disciplinary orders imposing financial penalties and varying, cancelling or suspending registration.
The bill once enacted will also create new offences, which are punishable by a fine on summary conviction. These include:
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a registered building inspector or building control approver acting outside the scope of their registration
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a person pretending to be a registered building inspector or building control approver to circumvent the new regulatory regime.
The new framework also stipulates that the BSR will act as the building control body for higher-risk buildings – broadly, those of at least seven storeys or more than 18m in height from the ground. The UK government has published a fact sheet summarising the changes.
Extension of the statutory regime
The bill would also make some notable changes to the Defective Premises Act 1972 and the associated statutory regime. Under section 1 of the 1972 Act, the owner or lessee of the building may make a claim against the builder if the dwelling has been constructed or converted defectively and is not fit for habitation. Section 1 covers only the original construction or conversion of the building, however, and not subsequent works.
Section 119 of the Building Safety Bill will add a section 2A to the 1972 Act, which would apply where works are undertaken on any part of a building during the course of a business. It would not therefore apply to homeowners working on their own properties, but to work carried out by a contractor after the original construction or conversion. The provision would cover buildings consisting of, or containing, one or more dwellings, which could include mixed-use developments.
The new section 2A would confirm that the person taking on work has a duty to the person having the work done. That duty extends to work done to the dwellings and to common parts of the building. The test is the same as under section 1 of the 1972 Act, namely whether the dwellings and the building are fit for habitation when the work is completed.
The government also intends to bring into force section 38 of the 1984 Act. Section 38(1) states that breach of a duty under the Building Regulations that causes damage can be pursued in court. 'Damage' would in this case include death and physical or mental injury, as well as monetary loss or damage to property.
Another significant change is the extension of the limitation period for claims. For claims under both section 2A of the 1972 Act and section 38 of the 1984 Act, the previous period of six years is being extended to 15 years. The limitation period is only prospective, and there is no retrospective extension of the limitation period for past claims. For those pursuing claims under section 1 of the 1972 Act, however, the limitation period has been extended to 30 years retrospectively.
What these changes mean for building control
While the new regulatory framework will clearly have a substantial effect on the building control profession, it seems at this stage unlikely that the extension of the statutory regime will materially affect the position of building inspectors or building control approvers.
The provisions of the 1972 Act do not apply to building control officers; they are aimed at those carrying out work on relevant buildings. Section 38 of the 1984 Act could, in theory, apply, given that it is concerned with breach of the Building Regulations causing damage. However, this would go against the direction of law since the 1990s in relation to building control officers' liabilities.
Neither do such developments correspond with the information that the government has issued about these provisions. Its direction so far suggests that section 38 is intended to supplement the rights available under sections 1 and 2A of the 1972 Act, rather than create an entirely new, freestanding set of liabilities in civil law to encompass building control officers for the first time.
'It seems at this stage unlikely that the extension of the statutory regime will materially affect the position of building inspectors or building control approvers'
Simon Lewis is a partner at Womble Bond Dickinson
Contact Simon: Email
Related competencies include: Building control inspections, Fire safety, Inspection, Legal/regulatory compliance