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Since 2017’s Grenfell Tower fire, the British public, and HM Government, have been concerned with steps to combat the effects of the general decline in quality affecting the UK’s built environment. The Building Safety Act 2022 (BSA) is the latest attempt to address this issue. It contains five notable features aimed at redressing the decline in building standards. Some represent a dramatic shift in the emphasis for government regulatory strategy.
The first, and principal, feature was to establish a building safety regulator (s 2) tasked to ‘secure the safety of people’ and to improve the ‘standards of buildings’ (s 3). The regulator is the Health & Safety Executive, currently carrying similar tasks with respect to the conduct of building work.
Second, to achieve this, the regulator is given broad, sweeping powers, and a pervasive role in activities such as the development of residential apartment buildings. It is intended to provide the bite that various reports and analyses suggest the regulation of building work was lacking (e.g. The Grenfell Tower Inquiry: Phase 1 Report (October 2019) and Building a Safer Future: Independent Review of Building Regulations & Fire Safety: Final Report (May 2018) (sometimes known as the Hackitt Report)). Those powers and that role involve a mixture of amendments/augmentation to the existing regulatory structure in the Building Act 1984 (BA) as well as standalone provisions focusing on higher risk buildings specifically and issues such as construction products generally.
The third feature is the attention given to higher risk buildings. These are, generally, those that are at least 18 metres in height or at least 7 storeys (see BSA s 31, introducing BA s 120D(2), as well as BSA s 65(1)). This critical definition is unhelpful, as following that generality, the same term is given two potentially different, and hence misleading, definitions in BSA s 31 and in s 65(1). The BSA moves awkwardly to the concept of a ‘relevant building’ in BSA s 117: which is up to 11 metres high or with at least 5 storeys, and which will have different regulatory arrangements. Given that a burning 11 metre high block of flats can be just as deadly as an 18m high block, the BSA does not set out or justify the logical framework for the difference.
The fourth distinctive feature is the reliance upon notices and certificates as the principal way that building work is to be controlled. These provisions contemplate a very active, and invasive, role by the executive, mainly the regulator, into the conduct of building work. The notices, in particular, are founded on very broad discretionary considerations. They all have dramatic, even breathtaking effect. Apart from any civil consequences attaching to these notices, which are all but ignored in the legislation, non-compliance with these notices involve offences with serious penalties.
The most topical of these notices are: Compliance Notices & Stop Notices in s 38, Contravention Notices in s 99; Remediation Orders in s 123, Building Liability Orders in s 130, and the various contribution orders such as those in ss 124 and 152.
The Compliance & Stop Notices involve requirements for the recipients to either do, or refrain from doing, building work. They are largely driven by the relevant authority’s discretions, perceptions, and opinions – informed or uninformed, reasoned or idiosyncratic. The implications can be serious, and in some cases irremediable. Consideration will constantly be required for the need for prerogative or injunctive remedy, as well as for appeal.
Remediation orders involve a First-Tier Tribunal requiring the ‘relevant landlord’ to remedy specified defects. Again, this involves a requirement for work to be done, materials supplied, and money spent. On its face, these provisions do not pay particular attention to whether the recipient of such an order was the cause, or had any knowledge or control, of the defective work – and whether or not there the landlord has any available causes of action to bring the actual wrongdoer to account.
A Building Liability order is more dramatic, and intriguing. It can be issued if the High Court ‘considers it just and equitable’ – which is a legal formula indicating that the power is neither directed nor constrained by any specific criteria or conventional boundaries. The order makes one ‘body corporate’ responsible for the liability of another (of which it is ‘associated’ as defined in BSA s 131), where the liability involves a breach of the Defective Premises Act 1972, the BA, or ‘as a result of a building safety risk’.
As the fifth distinctive feature of the BSA, the new regime contains a range of provisions aimed at visiting responsibility for defective work upon those substantively responsible for deficiency.
A Building Liability Order, therefore, can defeat the use of the corporate veil by a corporate group to avoid responsibility for deficient work in building development. This concept of specific statutory provisions aimed at outflanking use of the corporate veil to avoid responsibility is also seen in Remediation Contribution Orders (s 124) as well as in the provisions such as the Cost Contribution Orders in ss 153 and 154.
The same spirit underlines the provisions addressing discipline of architects (s 157 et seq) and those in s 161 that is directed to extend liability for offences by a corporation to any ‘director, manager, secretary or other similar officer’ who consented or ‘connived’ the corporation’s commission of the offence.
The BSA reflects a distinct shift of emphasis, means, and direction to the regulation of building work, putting ‘bite’ into the bite. The scheme of the BSA contemplates a stronger, more active and strident, and more invasive approach by the executive to building development than might have been taken before. With it, there is a far greater scope for constraint and conservatism in the activities of the development industry itself. But, in the longer term, is this the right move? And is there a suggestion that the government has the will, and is willing to devote the resources, to this approach in the longer term?
There is no question that, following the terrible example of the Grenfell Tower fire, building regulation and building regulations need to be examined, analysed, understood, reviewed and, in many cases, tightened up – in some cases dramatically. Nor is there any question that the authorities given responsibility to ensure that building work is undertaken safely and properly, and that the consequent buildings are safe and appropriate for community use should have sufficiently potent powers to ensure that their requirements are obeyed.
At the moment, with this partial commencement, the full effect, impact, and implications of the BSA are not clear. Significant features of the legislation depend upon detailed provisions in regulations that have neither been made, or even foreshadowed. Other parts of the legislation have been promulgated, but have not commenced.
To an extent, the likely shape and operation of the legislation may be seen in the way that virtually identical legislation in New South Wales, Australia: the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB 2020). The RAB 2020 has operated for nearly two years, and has evidenced the approach that a regulatory authority might be expected to take in the exercise of such wide, broadly discretionary, and generally unregulated powers. In short, the powers have been effective, but with a disturbing background of complaint about executive overreach and negative impacts upon building development – for the industry as well as for consumers. The executive seems happy, though.
The issue is whether the provision of such broad discretions, scope for subjectivity on the part of the executive accompanied by such dramatic powers, without a more detailed legislative framework, is really the best way to achieve the improvement of standards, and by this the improvement of the culture of quality, in the built environment? You can guess the author’s view on this.
Reliance on the ‘policing’ approach to building regulation gives people who like policing a warm glow. But there are significant costs – in the short as well as the longer term. Relying upon the regulator and its new powers as, effectively, the front line to stamping out sub-standard building work requires an enormous, long term, commitment in personnel, money, and resources. A real issue in the light of the economic circumstances currently affecting Britain.
That approach also requires that the heavy, invasive, involvement of government regulators is sophisticated and nuanced enough to actually generate better behaviour in the process of construction work, without being so heavy handed as to stifle genuine and proper innovation, or to stamp out competition.
It is obviously critical that property development is undertaken in an appropriate, proper, and socially acceptable way; involving the provision of a built environment that is safe and fit for purpose. However, viewed maturely, property development is such an important feature of the economy, in income generation, employment, and provision of a social infrastructure, that an overly heavy, inept handling of regulation, can have serious negative long-term effects.
Property development, especially high-rise residential development is a very sophisticated, complex, and economically sensitive activity. It will do no good to anyone for well-meant, but ineptly handled regulation to do wide-spread damage to the British economy and its built environment. That is precisely the kind of context that generates sub-standard activities and sub-standard outcomes.
In the longer run, the issue will be whether the regulator is given sufficient and sophisticated resources – in terms of funds, personnel, training, experience, and other support required to exercise such broad discretions with the necessary delicacy and nuance. The issue will also involve whether, and to what extent, those resources are appropriately spread around the UK, and so avoid the kind of economic and social outcomes that Levelling Up is meant to remedy. It is a daunting task, and an enormous ask, for this degree of active oversight to be applied to each and every building project throughout England and Wales.
Accordingly, there is a strong case for the provisions of the BSA to be augmented and supported by more comprehensive, and more economically sensitive, legislation for regulation of the building industry. Legislation that makes more detailed provision for the personal accountability of developers, contractors, and trades, and that gives consumers more and better avenues to deal with problems and complaints, and to achieve their own compensation and other outcomes.
Clearly, if the consumers are empowered and better able to vindicate their own rights and interests, there will be less need for reliance upon the regulator to address every mess.
Having said all of this, the BSA brings many welcome features to regulation of building work. One hopes that it will ensure that developers, builders, and all those involved in property development take building regulations seriously. We will see exactly how well the BSA does this in time. Viewed at a high level, the features of the BSA might be more welcome if the Act is not seen as an end in itself, but the forerunner of a program of further legislation giving a more sensitive framework to the development of the built environment as a whole.
This article is for academic discussion and consideration only, and does not contain legal advice and should not be relied upon to that effect.
Philip Bambagiotti is a barrister, arbitrator, arbitration advocate, independent negotiator, and consultant dispute resolver. He practises from chambers in 3 Paper Buildings, Temple, London (UK) and Sydney (Australia). He is an Adjunct Professor of Law at the University of Notre Dame Australia, Sydney
Since 2017’s Grenfell Tower fire, the British public, and HM Government, have been concerned with steps to combat the effects of the general decline in quality affecting the UK’s built environment. The Building Safety Act 2022 (BSA) is the latest attempt to address this issue. It contains five notable features aimed at redressing the decline in building standards. Some represent a dramatic shift in the emphasis for government regulatory strategy.
The first, and principal, feature was to establish a building safety regulator (s 2) tasked to ‘secure the safety of people’ and to improve the ‘standards of buildings’ (s 3). The regulator is the Health & Safety Executive, currently carrying similar tasks with respect to the conduct of building work.
Second, to achieve this, the regulator is given broad, sweeping powers, and a pervasive role in activities such as the development of residential apartment buildings. It is intended to provide the bite that various reports and analyses suggest the regulation of building work was lacking (e.g. The Grenfell Tower Inquiry: Phase 1 Report (October 2019) and Building a Safer Future: Independent Review of Building Regulations & Fire Safety: Final Report (May 2018) (sometimes known as the Hackitt Report)). Those powers and that role involve a mixture of amendments/augmentation to the existing regulatory structure in the Building Act 1984 (BA) as well as standalone provisions focusing on higher risk buildings specifically and issues such as construction products generally.
The third feature is the attention given to higher risk buildings. These are, generally, those that are at least 18 metres in height or at least 7 storeys (see BSA s 31, introducing BA s 120D(2), as well as BSA s 65(1)). This critical definition is unhelpful, as following that generality, the same term is given two potentially different, and hence misleading, definitions in BSA s 31 and in s 65(1). The BSA moves awkwardly to the concept of a ‘relevant building’ in BSA s 117: which is up to 11 metres high or with at least 5 storeys, and which will have different regulatory arrangements. Given that a burning 11 metre high block of flats can be just as deadly as an 18m high block, the BSA does not set out or justify the logical framework for the difference.
The fourth distinctive feature is the reliance upon notices and certificates as the principal way that building work is to be controlled. These provisions contemplate a very active, and invasive, role by the executive, mainly the regulator, into the conduct of building work. The notices, in particular, are founded on very broad discretionary considerations. They all have dramatic, even breathtaking effect. Apart from any civil consequences attaching to these notices, which are all but ignored in the legislation, non-compliance with these notices involve offences with serious penalties.
The most topical of these notices are: Compliance Notices & Stop Notices in s 38, Contravention Notices in s 99; Remediation Orders in s 123, Building Liability Orders in s 130, and the various contribution orders such as those in ss 124 and 152.
The Compliance & Stop Notices involve requirements for the recipients to either do, or refrain from doing, building work. They are largely driven by the relevant authority’s discretions, perceptions, and opinions – informed or uninformed, reasoned or idiosyncratic. The implications can be serious, and in some cases irremediable. Consideration will constantly be required for the need for prerogative or injunctive remedy, as well as for appeal.
Remediation orders involve a First-Tier Tribunal requiring the ‘relevant landlord’ to remedy specified defects. Again, this involves a requirement for work to be done, materials supplied, and money spent. On its face, these provisions do not pay particular attention to whether the recipient of such an order was the cause, or had any knowledge or control, of the defective work – and whether or not there the landlord has any available causes of action to bring the actual wrongdoer to account.
A Building Liability order is more dramatic, and intriguing. It can be issued if the High Court ‘considers it just and equitable’ – which is a legal formula indicating that the power is neither directed nor constrained by any specific criteria or conventional boundaries. The order makes one ‘body corporate’ responsible for the liability of another (of which it is ‘associated’ as defined in BSA s 131), where the liability involves a breach of the Defective Premises Act 1972, the BA, or ‘as a result of a building safety risk’.
As the fifth distinctive feature of the BSA, the new regime contains a range of provisions aimed at visiting responsibility for defective work upon those substantively responsible for deficiency.
A Building Liability Order, therefore, can defeat the use of the corporate veil by a corporate group to avoid responsibility for deficient work in building development. This concept of specific statutory provisions aimed at outflanking use of the corporate veil to avoid responsibility is also seen in Remediation Contribution Orders (s 124) as well as in the provisions such as the Cost Contribution Orders in ss 153 and 154.
The same spirit underlines the provisions addressing discipline of architects (s 157 et seq) and those in s 161 that is directed to extend liability for offences by a corporation to any ‘director, manager, secretary or other similar officer’ who consented or ‘connived’ the corporation’s commission of the offence.
The BSA reflects a distinct shift of emphasis, means, and direction to the regulation of building work, putting ‘bite’ into the bite. The scheme of the BSA contemplates a stronger, more active and strident, and more invasive approach by the executive to building development than might have been taken before. With it, there is a far greater scope for constraint and conservatism in the activities of the development industry itself. But, in the longer term, is this the right move? And is there a suggestion that the government has the will, and is willing to devote the resources, to this approach in the longer term?
There is no question that, following the terrible example of the Grenfell Tower fire, building regulation and building regulations need to be examined, analysed, understood, reviewed and, in many cases, tightened up – in some cases dramatically. Nor is there any question that the authorities given responsibility to ensure that building work is undertaken safely and properly, and that the consequent buildings are safe and appropriate for community use should have sufficiently potent powers to ensure that their requirements are obeyed.
At the moment, with this partial commencement, the full effect, impact, and implications of the BSA are not clear. Significant features of the legislation depend upon detailed provisions in regulations that have neither been made, or even foreshadowed. Other parts of the legislation have been promulgated, but have not commenced.
To an extent, the likely shape and operation of the legislation may be seen in the way that virtually identical legislation in New South Wales, Australia: the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB 2020). The RAB 2020 has operated for nearly two years, and has evidenced the approach that a regulatory authority might be expected to take in the exercise of such wide, broadly discretionary, and generally unregulated powers. In short, the powers have been effective, but with a disturbing background of complaint about executive overreach and negative impacts upon building development – for the industry as well as for consumers. The executive seems happy, though.
The issue is whether the provision of such broad discretions, scope for subjectivity on the part of the executive accompanied by such dramatic powers, without a more detailed legislative framework, is really the best way to achieve the improvement of standards, and by this the improvement of the culture of quality, in the built environment? You can guess the author’s view on this.
Reliance on the ‘policing’ approach to building regulation gives people who like policing a warm glow. But there are significant costs – in the short as well as the longer term. Relying upon the regulator and its new powers as, effectively, the front line to stamping out sub-standard building work requires an enormous, long term, commitment in personnel, money, and resources. A real issue in the light of the economic circumstances currently affecting Britain.
That approach also requires that the heavy, invasive, involvement of government regulators is sophisticated and nuanced enough to actually generate better behaviour in the process of construction work, without being so heavy handed as to stifle genuine and proper innovation, or to stamp out competition.
It is obviously critical that property development is undertaken in an appropriate, proper, and socially acceptable way; involving the provision of a built environment that is safe and fit for purpose. However, viewed maturely, property development is such an important feature of the economy, in income generation, employment, and provision of a social infrastructure, that an overly heavy, inept handling of regulation, can have serious negative long-term effects.
Property development, especially high-rise residential development is a very sophisticated, complex, and economically sensitive activity. It will do no good to anyone for well-meant, but ineptly handled regulation to do wide-spread damage to the British economy and its built environment. That is precisely the kind of context that generates sub-standard activities and sub-standard outcomes.
In the longer run, the issue will be whether the regulator is given sufficient and sophisticated resources – in terms of funds, personnel, training, experience, and other support required to exercise such broad discretions with the necessary delicacy and nuance. The issue will also involve whether, and to what extent, those resources are appropriately spread around the UK, and so avoid the kind of economic and social outcomes that Levelling Up is meant to remedy. It is a daunting task, and an enormous ask, for this degree of active oversight to be applied to each and every building project throughout England and Wales.
Accordingly, there is a strong case for the provisions of the BSA to be augmented and supported by more comprehensive, and more economically sensitive, legislation for regulation of the building industry. Legislation that makes more detailed provision for the personal accountability of developers, contractors, and trades, and that gives consumers more and better avenues to deal with problems and complaints, and to achieve their own compensation and other outcomes.
Clearly, if the consumers are empowered and better able to vindicate their own rights and interests, there will be less need for reliance upon the regulator to address every mess.
Having said all of this, the BSA brings many welcome features to regulation of building work. One hopes that it will ensure that developers, builders, and all those involved in property development take building regulations seriously. We will see exactly how well the BSA does this in time. Viewed at a high level, the features of the BSA might be more welcome if the Act is not seen as an end in itself, but the forerunner of a program of further legislation giving a more sensitive framework to the development of the built environment as a whole.
This article is for academic discussion and consideration only, and does not contain legal advice and should not be relied upon to that effect.
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