On Monday 5 July, the government published its Building Safety Bill, with the aim of transforming safety, quality and competency across the construction industry. The government’s impacts factsheet provides a concise but detailed summary of the bill’s content.
One significant announcement in the bill is an extension of the time in which leaseholders can pursue legal claims against those responsible for “unacceptable work” to “claim for compensation if their home is not fit for habitation”.
The legislation will be retrospective from the time the bill comes into force, which the government has stated will be within the next nine to twelve months.
Mark Klimt, RIBA Specialist Practice Adviser and Partner at law firm DWF, suggests that this could have a significant impact on both practices’ liability and how their insurers react. Insurers face the prospect of having to revisit projects from years they had considered long closed to claims.
The extension of legal recourse to 15 years is the government’s proposed legal remedy for leaseholders facing remedial bills for cladding that does not meet fire safety standards - and which is no longer covered by the current six-year claims window.
Changes to the Defective Premises Act
Lawyers are warning that it is a misconception to believe that these proposals are limited to high rise apartment buildings and fire safety considerations. The bill seeks to make changes to the operation of the Defective Premises Act (DPA), which applies to owners and leaseholders alike and allows them to sue anyone connected with the provision of a dwelling that is not fit for habitation when completed.
The bill will also extend the DPA to cover refurbishment and other works to existing homes, rather than only new homes and homes resulting from change of use, bringing 15 years’ worth of house alterations and extensions into the frame.
“This creates a significant new pool of prospective claims in relation to buildings that are subject to the DPA,” points out Emily Monastiriotis, UK Head of Dispute Resolution at Simmons & Simmons. She reveals that the firm has already received numerous queries from insurers about the extended DPA provisions.
“It should be remembered that the DPA applies to any design, workmanship or use of materials issues said to render a dwelling unfit for habitation.”
Simmons & Simmons point out another measure designed to shield leaseholders from remedial costs. This is a new requirement on landlords to take reasonable steps to obtain costs from a third party – including insurance or indemnity from anyone involved in designing or carrying out works on a building – before they pass costs onto leaseholders. The scope of works to be covered has yet to be defined, but it could also prompt claims against the design team.
Competence requirements for architects
Another aspect of the bill directly relevant to architects are the provisions establishing competency regimes to underpin Building Regulations.
The bill will give the Architects Registration Board (ARB) new powers to monitor and assess the competence of architects throughout their careers, with de-registration as the ultimate sanction. Details of how this system will operate will emerge from the ARB’s own Competence Review, for which it is expected to consult with relevant bodies including the RIBA.
The ARB’s page entitled Changes to the Architect’s Act states that the government will:
- give the ARB powers to publish disciplinary orders against an architect on the register by the Professional Conduct Committee in the Building Safety Bill
- work with the ARB to determine the length of time a disciplinary order shall be listed on the register … the time the order is listed should take into account the severity of the order
Competence of the Principal Designer and Contractor
There will be new competence requirements for the Principal Designer and Principal Contractor, currently in development with the British Standards Institute.
Until now, the duties of the Principal Designer have focused on health and safety and welfare during the construction process. Paul Bussey, a fire safety expert at AHMM, says under the new regime, the Principal Designer will be effectively signing off on the safety of the building’s design - not just the design as it affects work on site.
It will be a more elevated role, more in line with practice in some EU countries, he believes: one that would be difficult to fulfil by anyone but the lead designer or architect.
Other impacts of the Building Safety Bill
The headline provisions of the Building Safety Bill remain largely unchanged from previous announcements:
- a new regulatory regime for higher-risk, high-rise buildings
- a three-stage ‘gateway’ system for planning
- a ‘golden thread’ of information relating fire safety compliance
More can be read about these in the RIBA feature New fire safety information will be required for planning implications. Note that Gateway 1, requiring planning applications to demonstrate thinking on fire safety as far as it relates to land use planning, will apply from 1 August 2021.
Thanks to Mark Klimt, Partner, DWF Law LLP; Emily Monastiriotis, UK Head of Dispute Resolution, Simmons & Simmons LLP; Paul Bussey, Practicing CDM & Principal Designer Lead, AHMM.
Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas
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