Building Safety Bill update - November 2021

Timeline for the expected passage of the Building Safety Bill

One of the most frequent questions asked of the Simmons fire safety team is: When will the Building Safety Bill come into force? The changes it will bring will obviously have significant ramifications for those in the construction and property industries, who will want to plan ahead and anticipate the changes.

A transition plan and estimated timeline issued by the Ministry of Housing, Communities and Local Government (MHCLG) outlines when the provisions from the Bill, as ultimately finalised after debate in Parliament, will likely come into force. MHCLG projects that the Bill will likely receive Royal Assent between April and July 2022 (‘9-12 months’ after the Bill was introduced into the House of Commons on 5 July 2021). Key changes will then come about in two principal phases; the first raft of changes within 12 months of Royal Assent, and the second between 12-18 months after Royal Assent. Within this, it is worth noting that the relevant limitation extension amendments are due to come into force 2 months after the date on which the Building Safety Bill receives the Royal Assent.

Due to the nature of Parliamentary procedures and the complexity of the Bill, we cannot obviously be certain of precisely when the Bill will become law, nor know exactly what its final form will be. However, the summary below represents the current best estimate of when the main provisions of the Bill are likely to come into force.

In summary:

Current status of the Building Safety Bill

The Select Committee phase of the Bill’s progress through Parliament has now ended. An updated version of the draft Bill, including a limited number of proposed amendments which the Committee were able to unanimously accept, has been published. (It is worth noting the new version has resulted in various clauses being re-numbered: for example, clause 126 (relating to the extension to limitation periods) has become clause 128). You can access the current draft of the Building Safety Bill and follow its progress through the key parliamentary stages here.

Of the amendments that the Select Committee has accepted, one which may be of greater interest is at (new) clause 73 of the Bill, which provides that it will be a criminal offence to allow the occupation of a relevant residential unit in a higher-risk building before a completion certificate relating to that part of the building is issued. This is designed to support the “hard stop” at Gateway 3 of the construction process.

The next stage for the Bill will be the “Report” stage, which is an opportunity for the Commons to discuss the Bill and consider further amendments. The commencement date for the Report stage is yet to be announced: there is no set time frame in which it must begin, and this will depend upon parliamentary business.

During the Report stage, all MPs may propose amendments and/or speak, and for a complex Bill such as this one, the process may take quite some time. After the Report stage, the Bill will then be debated on its Third Reading in Parliament. It will then be sent to the House of Lords.

The Government has also recently released a number of further draft regulations which it is intended will form part of the Bill’s secondary legislation. It is worth noting in particular the draft regulation for higher-risk buildings relating to building control processes; change control issues and more detail on the “golden thread” of information, among other things.

Change of Secretary of State: a change to a “polluter pays” approach to remediation costs?

The Rt Hon. Michael Gove has recently been appointed as new Secretary of State for the Department of Levelling up, Housing and Communities. On 8 November 2021 Mr Gove made a statement to the Departmental committee regarding building safety issues and the cladding crisis, which has been reported upon in the media. In summary:

• Mr Gove has indicated that by Christmas, he intends to withdraw the MHCLG consolidated January 2020 advice note, at least in relation to lower-height buildings. As a reminder, among other things, that advice note had advised building owners to check external walls of residential buildings regardless of height. This comment complements the Government’s statement from July 2021 that it had taken updated independent expert advice and now considered that there may be lower risk of external-wall fire safety issues in buildings under 18m.

• Further, he commented that he was planning to “pause” the Government’s previous proposal to provide a loan scheme for remedial works costs to leaseholders of lower-height buildings, so other approaches could be considered. He noted that he was unhappy with leaseholders having to pay for remedial costs at all and that he tends to favour a “polluter pays” system for cladding and other fire safety remedial works costs. This appears to be a reference to a concept set out in one of the proposed amendments to the Building Safety Bill, which would introduce a statutory scheme for attributing liability for remedial costs to those variously involved in the development, design, construction and certifying etc of relevant properties.

Mr Gove’s comments regarding “Polluter pays” in particular potentially appears to signal a shift from the Government’s previous approach (in which remedial works costs recovery ultimately still rested on legal claims being pursued against potential defendants through the Courts). If such a statutory “Polluter pays” concept were to be introduced into the Bill by the Government, while it can be anticipated that the wording of any amendment would considered and subject to debate, such a change obviously would have potentially significant implications for such defendant parties and their insurers. Again, this announcement also emphasises that the Bill’s terms remain far from settled and that its contents are going to continue to be a very live political issue.

Update on the limitation extension: the “Redress Factsheet”

A “Redress: Factsheet” published by the Government on 8 November 2021 summarises the proposed changes made by the Building Safety Bill to the Defective Premises Act 1972, the implementation of s38 Building Act 1984 (which relates to claims for damages for breach of the Building Regulations) and the extended limitation periods for both. The Factsheet includes a summary of how the proposed 15 year extension to the period to bring a claim under s1 of the DPA is going to be retrospective as well as prospective. It also emphasises that s1 DPA is a “strict liability” duty (ie so the claimant does not have to demonstrate fault or negligence has taken place) and that it applies to all residential dwellings (ie not just high rise buildings, or flats). As above, if the timeline for passage of the Building Safety Bill remains on track, which remains to be seen, any retrospective extension of time to bring claims under s1 DPA 1972 could apply from as early as June 2022. For those claimants whose buildings only just fall within the time frame (eg if it is in force from June 2022, and completion occurred in, say, July 2007) the Act is also going to provide for a 90 day “grace period” to allow such claimants to take advice and file their claims.