Unravelling liability in ensuring safer buildings

Building Safety is a key consideration for anyone involved with the built environment. Following the Grenfell disaster the renewed focus on Building Safety led to the Building Safety Act 2022. That Act has impacted on so many areas it is difficult to summarise but it aims to bring more focus and accountability to building safety throughout the lifetime of a building. It establishes new responsibilities and new guidance that must be followed.

While the Act is broad in itself, Building Safety in general is even broader. This isn’t simply a matter of new legal rules, but a shift in culture and practice. The issues we are facing are not just legal ones but include questions of fire safety, building standards, methods of construction, government policy on risk allocation and many other areas. Since before the Act was published we have been working with consultants and contacts across numerous disciplines to understand how to advise and assist with the new status quo.

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Our team across numerous practice areas can help with directing you the right advice and the right result, whether that is a big claim in litigation or compliance with the new rules for selling a property. We have tried to summarise the areas we can help with below, but please do get in touch to discuss any issues you have.

Once a building is completed, responsibility for the life of that building is immediately passed to the “accountable person” and “principal accountable person”.

For new buildings, these identified persons take responsibility post planning. For existing buildings a review of the leasehold arrangements  is required to identify who is accountable.

We can support on that analysis.

Contact Kate New

For cladding product claims claimants can now recover damages directly from the product manufacturer/supplier if the product either fails to meet relevant standards/requirements or is inherently defective and this causes a dwelling to be ‘unfit for habitation’. This may be useful to both building owners and leaseholders. It could also assist contractors in pursuing a contribution claim against the supplier/manufacturer. We can help in assessing potential claims (including contribution claims) against the original manufacturer/supplier.

Where unsafe cladding has been supplied or installed a claim for replacing the cladding and/or damages can be brought against the responsible contractor or designer, as well as associated companies or entities. Privity of contract is not necessarily a prerequisite and therefore owners and leaseholders now have the opportunity to recover some of the costs associated with remedying unsafe cladding to make buildings safe. We are able to advise on the viability of making such a claim and what a potential recovery might look like.

Contact Lee Ward

Bringing a claim for works which do not comply with Building Regulations has been made easier.  The introduction of Section 38 of the Building Act 1984 (which was in existence previously but not in force) means that a new statutory cause of action exists which permits a claim for breach of Building Regulations.  In the past, breach of Building Regulations was not actionable in and of itself – instead claimants would need to rely on a breach of other express or implied contractual terms. This cause of action will therefore be particularly helpful for many leaseholders where a contractual relationship with the contractor may not exist. We can assist in seeking resolution and rectification where there’s been a breach of Building Regulations.

Contact Lee Ward

Remediation Orders may be obtained against a landlord with a repair and maintenance obligation requiring them to carry out specified remedial works by a specified time at their own cost in respect of relevant defects.

Remediation Contribution Orders may be granted against landlords, developers and associates where it is “just and equitable to do so” requiring them to make payment to a specified person for the purpose of remedying relevant defects.

The First Tier Tribunal deals with both and we can provide support with any application.

Contact Emma Preston

In development projects, it is common practice for developers to create a corporate structure creating subsidiary companies such as shell companies or SPVs (Special Purpose Vehicles). These types of companies typically have complex legal structures but keep limited assets, and at the end of a project they will often transfer any assets to another part of the business and dissolve the company. The primary purpose of a Building liability Order (BLO) is to prevent developers escaping civil liability for safety defects by hiding behind these legal structures. The aim of a BLO is to ensure that the original developer (or other liable party) funds any remedial work required.

We can help with providing advice in relation to BLOs.  We have advised a number of times on whether other companies that are less obvious can be found liable for the costs or remediation.  This is a highly unusual ability for the courts to look past corporate limited liability and should be an effective tool to ‘follow the money’.

Contact Dickon Court

The BSA extends the limitation period for claims made under the Defective Premises Act 1972 (DSA) (which imposes a duty on those constructing dwellings to do so in a workmanlike manner, using proper materials, so that the dwelling is fit for habitation) from six years from practical completion (including latent defects), to either a 30-year limitation period for dwellings completed prior to 28 June 2022, or a 15-year limitation period for dwellings completed after 28 June 2022.

Contact Dickon Court

Developers who have signed up to the Government’s ‘Bilateral Agreement’ to remediate life-critical fire-safety remediation work arising from the design, construction or refurbishment of buildings of 11 metres and above are obliged to either undertake the works at their own cost, procure the works at their own cost through a suitably qualified contractor or fund the costs of a third party with responsibility for the affected building for procuring the works.

There are a number of considerations for both developers and management companies (entities with responsibility for the building) in selecting the right option. These include expediency of the works, the availability of local labour and the supply chain, the significance of the defects and the likelihood of risks materialising as well as, cost. Understanding the various options available to you (whether as a developer or a management company), the benefits and drawbacks of each option and allowing for a frank conversation to take place between all involved parties at the outset, goes a long way into ensuring that life-critical safety defects are remediated as quickly as possible, per the Government’s intention.

We have extensive experience of advising both developers and management companies of affected buildings in this regard, including advising on some of the first implementations of these arrangements in the market. This early involvement means that we understand and are well placed to advise on the issues that a likely to arise (such as in relation to allocation of liability and which of the remediations options is likely to be most appropriate in any given scenario).

Contact Mark Greatholder

Whilst the BSA is in its infancy, there are many pre-existing landlord and tenant relationships that will require analysis in terms of delivering safer buildings. In any leasehold situation, questions will arise out of repairing obligations, how those complement statutory obligations, and in particular how issues such as supersession will be managed in light of this legislation. Who is liable for these costs will also require close scrutiny of the relationship between the relevant parties, the service charges, and applicable statutory requirements during the landlord and tenant relationship.

Contact Kate New

The obligation to register with the regulator for all entities who will be deemed “accountable persons” and “principal accountable persons” has now passed.  Any outstanding registrations need to be expedited and all the information sought from the regulator provided without further delay.

Those who take responsibility for buildings in the future need to ensure that the statutory obligation to identify themselves and their involvement is dealt with appropriately.

Contact Kate New

The BSA confers a host of new obligations on numerous parties.  Often obligations will overlap and or be duplicated.  In the main, those with a repair and maintenance obligation will have increased obligations relating to safety matters and administrative requirements (whether that be a Landlord or a Right to Manage company) while Developers and Landlords may find they have an obligation to remediate as a result of the BSA.  If you are in any way unsure of whether you need to take action, we can assist with that.

Contact Emma Preston

The BSA and the regulations that go alongside it, offer leaseholder protections against costs through service charges for remediation of ‘relevant defects’ in ‘relevant buildings’. In certain circumstances both a Landlord’s Certificate and Leaseholder Deed of Certificate will be required to confirm their respective status and the ability to recover costs for remediation. We have been helping Landlord’s navigate their responsibilities in providing the Landlord’s Certificate by providing advice as to whether one is required and also the interpretation of the BSA requirements in this respect. As a Landlord, early advice is absolutely necessary to understand your obligations not only to ensure sales of leasehold properties within the building can complete without unnecessary delay, but also to ensure that recovery of the costs of remediation can be passed via the service charge by complying with the timings imposed by the BSA on the production of the Landlord’s Certificate.

Contact Jade Hawksworth

One of the most notable and talked about elements of the Act 2022 is the creation of the Building Safety Regulator, or the “BSR”.  Under the Act, the Health and Safety Executive (“the HSE”), with its decades of experience setting standards for and the monitoring and enforcement of, the rules of workplace health and safety, will take on equivalent responsibilities in relation to higher-risk buildings.  It is hoped (and we would expect) that the HSE’s experience of providing detailed and helpful guidance to employers, as well as navigating the rules required for them to ensure fair investigations and proportionate regulatory enforcement, will stand officers in good stead.

Our Regulatory lawyers have worked closely with businesses and directors advising in response to HSE investigations over decades.  We have used this experience to provide bespoke training to clients on the Act, looking at the timeline for BSR involvement as well as their approach to regulatory enforcement, to provide insight in relation to operational decisions that are required.

This training has addressed the thorny issue of potential sanction(s) given the Act creates criminal offences relating to different stages of the construction process.  It is vitally important that businesses are aware of the implications of action / inaction now, so that risks may be understood and mitigated in a timely manner.

Going forward, businesses many be concerned about the preparation of the Safety Case or Safety Case report or have received adverse looking correspondence is received from the BSR.  Our Regulatory lawyers are on hand to guide you through the regulatory maze so that you may properly understand and mitigate regulatory risk.

Contact Tim Williamson

The Building Safety Act

Everyone involved in developing, designing, building and managing property, (with great emphasis placed on buildings defined as ‘higher-risk’) needs to recalibrate their mind-set to align with the BSA.  The BSA is a seismic shift and for all construction related matters.

By introducing new rigour through the planning and construction stages, which is then handed over at completion, the intention is it will be possible to fully understand the construction, history and safety elements of all buildings going forward.  Those constituent parts will be required to be understood, monitored and re-monitored throughout the life of the building.

The policy behind the BSA is far-reaching with many established legal constricts (limitation, the corporate veil etc) being effectively abandoned in this sphere to ensure any loopholes to evade liability are closed.

Our specialist team can support on any aspect of the BSA ensuring you are prepared and aware.

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Our lawyers are experts in their field and have a wide range of experience in advising on development projects which have included issues relating to co-location, development funding, development structures, estate management, master planning options, overage and uplift, plot sales, accommodation programmes, renewable energy infrastructure and regeneration.

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Planning Gateway 1

The building safety process starts at Planning Gateway 1. Developers requesting planning approval for high-rise structures are required to provide a thorough fire and structural safety report at this point.

Planning Gateway 1 was introduced through planning legislation in 2021. This marks the beginning of the building safety process. Any developer seeking planning permission for a high-rise building may need to submit a fire statement setting out fire safety considerations, together with the application for planning permission which involves one or more relevant buildings. The local planning authority must then consult the Health and Safety Executive (HSE) as a statutory consultee.

Planning Gateway 1 was introduced to ensure developers consider the planning issues related to fire safety in light of the Grenfell Tower incident in 2017.

  • Two or more dwellings or educational accommodation; and
  • A height requirement of 18m or more in height or 7 or more storeys high.

It is important to note that dwellings include both flats and educational accommodation, including for the use of students boarding at a boarding school.

Fire statements must be submitted on a form published by the Secretary of State which includes information regarding the following:

  • The principles, concepts and approach relating to fire safety;
  • The site layout;
  • Emergency vehicle access and water supplies for firefighters;
  • What, if any, consultation has been undertaken on issues relating to the fire safety of the development; and
  • How any policies relating to fire safety in relevant local development documents have been taken into account.

An application for planning permission for development which involves:

  • The provision of one or more relevant buildings;
  • Development of an existing relevant building; or
  • Development within the curtilage of a relevant building.

Planning permission must be accompanied by a fire statement unless an exemption applies.

  • A material change in use of a relevant building, and the material change of use would result in the building no longer being a relevant building;
  • A material change in use of land or buildings within the curtilage of a relevant building, and the material change of use would not result in the provision of one or more relevant buildings;
  • The application is for outline planning permission; or
  • The application is for permission to develop land without compliance with conditions under section 73 of the Town and Country Planning Act 1990.

  • For a development which will involve or is likely to involve the provision of one or more relevant buildings;
  • For a development of an existing relevant building except where the development consists of a material change in use of a relevant building which would result in the building no longer being a relevant building; or
  • For a development within the curtilage of a relevant building except in the case of development consisting of a material change in use of land or buildings within the curtilage of the building which would not result in the provision of one or more relevant buildings.

Yes – it is good practice for developers to contact the consultees at the pre-application stage to help address issues and avoid delays.

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