The harrowing tragedy at Grenfell Tower highlighted the dangers posed by unsafe cladding as well as the overall systemic failings in building safety regulation across the housing sector. In response, the Building Safety Act 2022 sought to improve the safety of higher-risk residential buildings, increase accountability across the construction industry, and protect many leaseholders from the costs of historical building safety defects.
Nearly a decade has passed since Grenfell and progress in identifying and remediating buildings with unsafe cladding has been inconsistent. The proposed Building Safety (Remediation of Unsafe Cladding etc.) Bill (the ‘Bill’) seeks to address the pragmatic shortcomings of the Building Safety Act. The Bill is designed to provide greater accountability and accelerate remediation efforts to ensure that residents can live in safe homes.
What Does the Bill Do?
The Bill is built around four focal objectives:
1. Greater Certainty on Remediation Requirements
A new register of residential buildings between 11 and 18 metres in height will be introduced. It will mandate a consistent approach for Fire Risk Assessments of External Walls (FRAEWs) and compel auditing so FRAEWs are carried out properly. Building owners and responsible entities will be required to identify unsafe cladding and determine the remediation works required.
2. Stronger Enforcement Powers
The Bill proposes a legal duty on those responsible for residential buildings over 11 metres high to assess and remediate life-critical external wall fire safety-risks with the consequence of sanctions for inaction. Regulators will be able to act against those delaying remediation, including through criminal prosecution for extreme cases.
3. Increased Accountability Across the Industry
The Bill will make it easier to pursue construction product manufacturers whose unsafe products contributed to fire safety defects. It will expand the ambit of parties who can bring a claim, including to developers.
4. A Safety Net Where Owners Fail to Act
A new “Remediation Backstop” is proposed in the Bill. This will enable a public authority to carry out remediation works where building owners fail to do so, and recover the costs from the responsible party at scale.
Beware Property Managers
Under the Building Safety Act 2022, building safety duties for higher-risk buildings must be carried out by an ‘Accountable Person’.
Managers may be appointed under section 24 of the Landlord and Tenant Act 1987 but are not currently treated as an Accountable Person. This means that responsibility for building safety duties can remain with the landlord, even where the landlord is no longer managing the building.
The Bill intends to amend this position. Where a manager is appointed under a section 24 order, they may be treated as the Accountable Person for a higher-risk building if they meet the definition under the Act. This will allow them to take on responsibility for building safety. It also allows the Building Safety Regulator to deal directly with the manager, for example in relation to submitting safety cases.
This measure is anticipated to come into force two months after Royal Assent.
How We Can Help
Building Safety Minister Baroness Blake stated, “Alongside new powers to force those responsible to fix unsafe buildings, these measures will help give residents the safety and security they deserve.”
It is safe to say that the Bill will have significant implications for landlords, leaseholders, managing agents, resident management companies and court-appointed managers of higher-risk buildings.
The parties mentioned above, together with others involved in the management of higher-risk buildings, should consider whether the proposed changes could affect their responsibilities and compliance obligations. Independent legal advice from an expert commercial property solicitor will prove beneficial to navigate this evolving landscape.