Dr Hywel Davies is technical director at CIBSE
As you read this, the Building Safety Bill should have completed its Report stage in the House of Lords and be ready for third reading, before going back – significantly changed – to the House of Commons. The target will be to get the bill to Royal Assent before the end of the current parliamentary session at the end of April.
During passage through the Upper House, which, in the UK parliament, is the revising chamber, the bill has been revised significantly. Following the so-called Valentine’s Amendments on 14 February, further amendments have been made to reduce the demands on leaseholders and cap what they might have to pay to remedy historic defects. These are very important changes, although they have limited impact on building services engineers.
Of greater impact for many Journal readers is the removal from the bill of the Building Safety Manager (BSM) dutyholder role. This role was proposed by Dame Judith Hackitt in her independent review, to support the accountable person in the day-to-day management of a building.
There was growing concern that this provision, along with the Building Safety Charge – also now removed – could have created significant costs for residents in buildings more than 18 metres in height or with more than seven storeys. The fear was that this could become a means for managing agents and their client contractors to generate work and fees – fears further fuelled by reports of managing agents already raising service charge demands for BSM costs before the bill is law.
The changes do not remove the requirements for the accountable person to manage the safety of the building and its residents
Residents’ groups have welcomed the removal of the BSM and Building Safety Charge, so what does it mean in practice?
The changes remove the specific dutyholder role and requirement on the accountable person to have a BSM for every high-rise building, but they do not remove the requirements for the accountable person to manage the safety of the building and its residents.
The various duties of the BSM, set out in Part 4 of the bill – in particular, clauses 87-94, describing what the accountable person must have done – still need to be undertaken. Now, however, the accountable person has flexibility and discretion to allocate those duties as appropriate to their organisation. Larger social housing providers may have people on their staff or contractors who already undertake these tasks, and they can now continue to do so.
One other set of very significant amendments was introduced that did not attract quite the same comment, possibly because they had not been trailed on social media in advance. Two significant clauses create new statutory liability relating to construction products. Under these provisions a liability will arise when four conditions are met.
The changes aim to protect leaseholders from escalating costs
The liability will be triggered if, at any time after the new provisions come into force, a person fails to comply with a requirement in relation to a construction product, supplies or makes a misleading marketing statement in relation to a product, or supplies a product that is inherently defective.
If that construction product is then installed in, applied or attached to a relevant building in the course of building works – so that when those works are completed a dwelling unit within that building is unfit for habitation because of inclusion of the defective or non-compliant product or the misleading marketing – this will create a liability on the person who supplied the defective product. They will have to pay damages to a person with a relevant interest in relation to the relevant building for personal injury, damage to property or economic loss as a result of the unfitness of the dwelling or dwellings. It will not be possible to restrict this liability through any terms and conditions or agreement.
This new clause creates a new right of action where a breach of regulations for a construction product leads to, or is a factor in, a dwelling becoming unfit for habitation.
So, anyone making or supplying products that make people’s homes unfit will be very firmly in the firing line in future – and that will be for any product that might be installed. We have been warned.
References:
1 Building Safety Bill as amended on 2 March,
2 Building Safety Bill amendments 22 March,