Legal spotlight - April 23

LAST YEAR saw the introduction of several key measures of the Building Safety Act 2022, including confirmation of the Health and Safety Executive (HSE) as the new Building Safety Regulator; the introduction of extended limitation periods for claims under the Defective Premises Act (DPA) and specific requirements for developers to pay to fix historical building safety defects in certain buildings they own. 

The next year is likely to be another important one for UK building and fire safety as a raft of new requirements come into force and the government begins to implement secondary legislation that adds more detail to the new regime. 

New requirements set to become law in 2023 include the introduction of Gateways 2 and 3; mandatory occurrence reporting and the requirement to create, hold and maintain the golden thread of information. Additionally, it is anticipated that the Building Safety Regulator will become operational in April 2023.

Some secondary legislation has already been laid before parliament but awaits approval, including the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations, which are expected to come into force in April 2023. In essence, these regulations define ‘building’ and ‘Higher-Risk Building’ and set out what is in scope under the new building safety regime, amending. They amend previous definitions to clarify what is and is not considered a “building” for the purposes of the design and construction and occupation parts of the new regime. This is likely to change who is the duty holder for different parts of buildings. Those who have already considered their duty holder roles in relation to high-risk buildings should take note; roles and the scope of responsibilities may change, particularly for those taking on the principal accountable person role.

Also awaiting approval are the Higher Risk Buildings (Key Building Information etc)(England) Regulations 2023, expected to come into force in April/May 2023. These specify key information that must be provided to the Building Safety Regulator about higher risk buildings. They also set out provisions regarding the parts of a higher-risk building for which an accountable person is responsible in relation to their duties under Part 4 of the Building Safety Act.

In March 2023 the UK government laid the Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 before parliament. If approved, they will come into force on 6 April 2023. They specify the requirements for the registration of higher-risk buildings with the Building Safety Regulator and set out provisions that the Building Safety Regulator and principal accountable persons must follow in relation to the registration regime and the review of decisions made by the regulator. They also provide that a fee of £251 is payable with the application for registration. 

The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations, which introduce the equivalent of the CDM regime from construction work to building work and aim to improve competency levels, were introduced to Parliament but then withdrawn in July 2022 due to concerns raised by industry around the levels of responsibility that were proposed. They are expected to be reintroduced between April – October this year.

While legislation bringing into force the “golden thread” is still awaited, the HSE has produced some detailed practical guidance to assist duty holders on complying with the “golden thread” principles for both new and existing buildings. For existing buildings, this guidance will be helpful for those taking on the accountable person or principal accountable person roles. For new buildings, the guidance will be relevant to contractors who will need to make sure that they have systems in place to implement what is required by the golden thread principles and provide the necessary information.

In fire safety, the government has launched a consultation to support the continuous improvement of ‘Approved Document B’ (ADB), which contains fire safety guidance. The consultation covers important proposals and closed on 17 March 2023. It is likely to reinforce the view of many within the HSE and fire and rescue services that tall buildings should have a second staircase. Those involved with new developments should take account of the proposed changes with a view to future-proofing their building designs.

Dutyholders must take note – 2023 is likely to be another year of significant change for building safety. Make sure you keep up to date with developments.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com