Cladding Update: Building Safety Bill looks set to become law 28 April

As foreshadowed by our second April 2022 Building Safety update, on 26 April the House of Lords passed the Common’s further amendments to the Building Safety Bill, and made no further changes. It has since been indicated in a tweet by the Conservative Peer, Lord Greenhalgh, that the Bill should receive Royal Assent on 28 April 2022, at which point it will become law.

The majority of the Act will not actually come into force on the date of Royal Assent, and will only do so when decreed by the Secretary of State.

The Government has already indicated that most of the Act’s provisions are not expected to come into force for at least a further 12 to 18 months, to allow further time for the Government to prepare regulations to support and implement the new laws, such as the creation of the Building Safety Regulator, the implementation of the new building control approval regime and “gateways” for the construction of new “higher-risk” tall residential buildings, the “accountable person” regime for building safety in occupied buildings, and the various new schemes such as the Building Industry Scheme (ie the fund for contributions towards historic building remediation), the Homes Ombudsman Scheme, residents’ engagement schemes, and compulsory new build warranties. (A limited number of “procedural” sections in the Act will be in force immediately in order to authorise the Government to begin the process of issuing such regulations etc).

However, some other key provisions – primarily to do with the routes for remediating historic building safety defects to existing residential buildings, and thus of significant importance to owners, developers and those involved in the construction of those properties – will automatically come into force 2 months from Royal Assent.

We will provide more detailed updates on these topics and once the bill in final form is available, but (using the clause numbers in the last published full draft of the bill - these may change slightly in the Act itself) the sections that will come into force two months from Royal Assent are as follows:

• Historic remediation obligations now primarily on landlords and developers, not leaseholders (clauses 115 to 124 and Schedule 8): these in effect implement the Government’s proposed “waterfall” of obligations on certain landlords and/or developers (and, potentially, their associated entities) to remedy / pay the cost of remediating “relevant defects” in certain “relevant buildings” over 11m+ (and to protect leaseholders from such costs as far as is possible).
• DPA and limitation – clauses 133 and 134: the changes to the Defective Premises Act 1972 (DPA) and the extension of limitation periods relating to claims under s1 DPA and s38 Building Act 1984.
• Construction products – clauses 145 – 154 and Schedule 11: the new rights and obligations relating to construction products, including in relation to causes of action regarding the historic manufacture and use of such products etc.
• Architects – clauses 156 – 158: the provisions relating to architects’ competencies / continuing professional development, an appeals committee and fees and functions of the ARB.

As noted, we will be providing some more specific comment once the Act is published in final form.