September 2022 Building Safety Act update

The Government has issued the Building Safety Act 2022 (Commencement No. 2) Regulations 2022, which bring into force sections 126 to 129 of the Building Safety Act from 1 September 2022. As we outline in more detail below, these sections relate to the creation of the Building industry Scheme, and the ability for prohibitions to be placed on those seeking building control approval or planning permission.

Building Industry Scheme

Section 126 and 127 of the Act empower the Government to issue regulations creating a scheme “for any purpose connected with (a) securing the safety of people in or about buildings in relation to risks arising from buildings or (b) improving the standards of buildings” which is specified to include securing such safety or improving such standards by “securing that persons in the building industry remedy defects in buildings or contribute to costs associated with remedying defects in buildings”. The scheme will apply to buildings in England.

The regulations to establish the scheme will cover:

• The descriptions of persons in the building industry who may be members of the scheme (eligible persons)

  • Persons in the building industry means “persons carrying on, for business purposes, activities connected with the design, construction, management or maintenance of buildings, including persons carrying out activities in relation to construction products”. The latter are said to include manufacturers, suppliers and importers of construction products.

• The conditions that such participants must meet to become a member of the scheme (membership conditions)

  • Membership conditions may include conditions relating to:
  • remedying defects in buildings in which the eligible person has a connection of a particular kind; and/or (ii) the making of financial contributions towards costs associated with remedying buildings (including in relation to which that person may have no connection)
  • the use of certain construction products of certain prescribed persons carrying out activities in relation to such products;
  • the provision of information to the Secretary of State or certain other persons
  • the competence or conduct (whether before or after the section comes into force) of any individual connected with an eligible person (eg a director or senior manager) or any person with whom an eligible person contracts
  • whether persons with whom an eligible person contracts are members of a scheme.

• Procedural matters such as applications to the scheme, fees, disputes and termination.

Prohibitions on development and on building control approval

Section 128 of the Act allows the Government to issue regulations to prohibit certain persons from carrying out the development of land in England. Such persons may include those who are eligible to be members of a Building Industry Scheme but are not members of that scheme. It is intended that a prohibition granted under the regulations will apply even if planning permission has previously been granted; and the regulations may, among other things, also make provision for enforcement action in relation to a breach.

Section 129 of the Act similarly provides that the Government may make regulations to impose a prohibition upon certain persons in relation to building control for current or proposed buildings in England. Again, such persons might include those who are eligible to be a member of a Building Industry Scheme but are not a member. The prohibition will, in relation to a relevant person, include, among other things, prohibiting (i) applying for building control approval or from depositing plans; (ii) the giving of an initial notice, plans certificate or final certificate; (iii) the granting of building control approval to them; and (iv) the passing of plans deposited by the person.

Implications

In short, the commencement of these sections allows the Government to begin the process of creating regulations to introduce Building industry Scheme(s) that will require members to remedy defective buildings and/or contribute to the cost of doing so; and to impose prohibitions on those in the industry as it considers necessary to do so, including those who may choose not to sign up to such schemes. We will know more detail once the regulations are published – it is presently uncertain whether there will be a consultation process in relation to these, but we will provide a further update as soon as more information becomes available.

New IUA model clause

We note that the IUA has published a new PII fire safety model clause, for use in work being completed under the government’s Building Safety Fund.