Regime change for higher-risk buildings

The Grenfell Tower tragedy exposed serious failings in the construction and management of high-rise buildings and acted as a catalyst for change. From this, the Building Safety Act 2022 was born, introducing new occupational duties, overseen by a new Building Safety Regulator, focusing on accountability throughout the lifetime of higher-risk buildings. The new dutyholders (accountable persons) are organisations or individuals who own or have a legal obligation to repair common parts of HRBs. In practice, this will be landlords and management companies. Principal accountable persons, meaning the accountable person with ownership or responsibility for repairing the structure or exterior, must have registered their HRBs, if occupied, by 1 October 2023, or risk criminal prosecution. Where the dutyholder is a corporate entity, senior individuals within the organisation may also face criminal prosecution where they consented to, turned a blind eye to, or neglected to remedy a breach. The penalties for breach include unlimited fine and/or imprisonment. The government has long indicated that it intended for the 2022 Act to be fully in force by 1 October 2023. However, it is clear many dutyholders remain unprepared for this new and onerous regime. Here we set out the key duties and responsibilities and outline the new HRB control regime governing the construction of such buildings. New obligations for dutyholders – occupation phase Those with an interest in HRBs should be carefully assessing the title structure of the property and what, if any, role they have. Those who are principal accountable persons should register promptly as the application is not always straightforward. For accountable persons, detail about their precise roles was only published in The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 on 17 August 2023. Duties include: n complying with various principles when managing building safety risks including: evaluating risks, for example, by putting in place proportionate measures to address, reduce, mitigate and control risks (including combatting building safety risks at source); and ensuring suitable and proportionate systems are in place for the effective inspection, testing and maintenance of measures; ensuring those managing building safety risks are competent; ensuring a mandatory occurrence reporting system is in place; maintaining and preserving key information and documents electronically; and providing relevant information to residents and the BSR and reviewing and maintaining a residents’ engagement strategy where necessary. In addition, principal accountable persons will also need to prepare and maintain safety case reports. We anticipate these responsibilities will be enforceable from 1 October 2023, but the government has not yet confirmed when these will come into force. We recommend all accountable persons and principal accountable persons ensure they are registered and have put in place systems for preparing the requisite documents and managing ongoing risk. New HRB building control regime The 2022 Act created the framework to amend the building control regime for HRBs and the government consulted on changing the regime in late 2022. A response from the government to this consultation was published without notice in August 2023 simultaneously with the enactment of amended regulations which comprehensively reform this regime from 1 October 2023. The revised regime introduces changes to the way in which HRBs are procured and delivered. In summary: the regime introduces a number of additional steps – or gateways – which impose lengthy periods for regulatory approval at the pre-build stage and on completion of a building. These timescales are not guaranteed; construction cannot begin until the BSR is satisfied that the design meets the functional requirements of the building regulations and does not contain unrealistic safety management expectations. The BSR has 12 weeks to make this assessment once the relevant information has been provided. It is not yet known what level of detail will be expected at Gateway 2 and the extent to which developers will need to fully “design out” at source (including selection of the supply chain and specification of products). That would represent a significant shift to the way in which many construction projects are currently managed where much of this information is developed at a later stage; residential occupation will not be permitted until the BSR has issued a completion certificate. The BSR has eight weeks to issue this certificate after the building is complete. Allowing for this (with the potential for a completed building sitting unoccupied for eight weeks or more) is likely to have significant financial implications for the industry; changes to the planned building work are subject to approval by the BSR – for major changes, this period is six weeks (during which time the change cannot be implemented) and a 10-day approval period has been introduced for more minor changes; and production of the “golden thread”, which is the gathering of vital construction and safety information into a digital record from initial design intent through construction and to occupation of a building. The new regime also introduces complex transitional arrangements which potentially apply to buildings where work has started on site (and is “sufficiently progressed”) by 6 April 2024. There are, however, specific criteria as regards building control status and other circumstances which will determine whether or not transitional arrangements apply and the requirements which will apply in various transitional circumstances. The industry has had very little time to come to grips with this regime before it becomes law – coupled with extensive changes to how such construction work must be managed. The new regime creates significant regulatory requirements (with potential criminal liability for breach of certain provisions) and resulting commercial challenges for businesses involved in the development and occupation of high-rise residential premises. Against this background, the insurance and lending markets, that are integral to the development process, are understandably also taking time to adapt to the changes. Charlotte Higham is a legal director in construction & engineering and Adrian Mansbridge is a legal director in global investigations at Addleshaw Goddard LLP Image © Simon Chapman/LNP/Shutterstock