Lawyers in the property field should now know about the Building Safety Act 2022. It came into force in April 2023, with further regulations also recently coming into force.
Key provisions of the Building Safety Act 2022 and its accompanying Regulations include:
1. The establishment of a new Building Safety Regulator.
2. A mandatory system of registration for high-rise residential buildings.
3. The introduction of an ‘Accountable Person’ who is responsible for the safety of a building throughout its life cycle.
4. Improved accountability and traceability for construction materials.
5. Strong emphasis on resident engagement and empowerment.
6. Extension of regulations to cover lower-rise residential buildings.
7. Higher-Risk Buildings (HRBs) Regulations.
8. Enhanced leaseholder protections.
However, it may be less known that the Building Safety Regulator (BSR), part of the Health and Safety Executive (HSE), has just issued its Enforcement Policy Statement. This statement sets out its regulatory functions and approach to enforcing the new rules. The principles behind the new powers mirror those of the HSE’s own Enforcement Policy Statement. Among the things to be wary of are:
1. When the BSR acts as a Building Control Authority for higher-risk buildings, it can serve the following:
a) A compliance notice when a duty holder contravenes or is likely to contravene building regulations.
b) A stop notice where work is contravening building regulations and use of the building would present a risk of serious harm to people in and around the building. Such a notice can also be served where work occurs without Building Control approval or a compliance notice has been contravened.
c) A notice requiring removing or altering offending work where building regulations are contravened.
2. When the BSR regulates higher-risk buildings (HRBs), it can serve a compliance notice requiring a contravention to be remedied within a certain period. If the contraventions place people in imminent danger, it can specify that the contravention notice is an urgent action notice.
Failure to comply with any of these notices, which somewhat mirror the HSE’s own Improvement and Prohibition Notices, is a criminal offence and can result in prosecution.
The BSR can also apply to a tribunal to appoint a special measures manager for an occupied higher-risk building where building safety risks are not being managed, duties are repeatedly not complied with, and residents are put at risk of serious harm.
3. The BSR is also responsible for regulating the building control profession and can fine, strike off, or prosecute building controllers who fail to comply with the Code of Conduct, the Professional Conduct Rules, or Operations Standards Rules (OSR). Using its enforcement powers, it can:
a) Make disciplinary orders
b) Vary, suspend or cancel registration for Registered Building Control Approvers (RBCAs) and individual Registered Building Inspectors (RBIs)
c) Impose financial penalties on RBCAs and RBIs
d) Prosecute criminal offences relating to registration and the OSR
e) Issue an Improvement notice to a local authority or RBCA if they appear to have contravened the OSR, or a serious contravention notice if people have been endangered or an improvement notice has not been complied with.
f) Recommend to the Secretary of State that a local authority’s building control functions should be transferred to another local authority or the Secretary of State themselves.
From the above, you should recognise that the Building Safety Regulator has serious teeth and compliance with the new building safety regime is extremely important. For more information, especially if a client is facing enforcement from the BSR, speak to me.
Written by Edmund Conybeare
Consultant Regulatory Solicitor