The Building Safety Act 2022 – Defective High Rise Cladded Buildings built after 1992… Prosecution is on its way for all involved

November 24, 2022

The new Building Safety Act 2022 (BSA) came into force on 28 June 2022, it is aimed at liability for defects in “dwellings” and in the context of making buildings safe. In theory it aims at prosecuting those persons associated including designers, suppliers, contractors, regardless of any bankruptcy defence associated with the supply and installation of defective and/or dangerous building products and buildings. The legislation is born out of the Grenfell Tower Fire in 2017 targeting “high risk” buildings such as those over 11m high and constructed in cladding as well as all other buildings. The main point to note is that the BSA amends the limitation Act to 15 years for defects in buildings and in the case of the “high risk” buildings and those falling under Section 1 of the Defective Premises Act 1972 claims can be made going back  to 28 June 1992, over 30 years ago. What does it all mean?

The BSA as noted above amends existing legislation including the  Defective Premises Act 1972 and the Building Act 1984. These older pieces of legislation deal with the quality of construction work in respect of fitness for habitation in dwellings and the Building Regulations. There is a plethora of case law also on the interpretation of these Acts and what is meant by “reasonable  skill and care”, “workmanlike” and  “ordinary competent builder”. Similarly, there are cases in respect of materials, the warranty for the quality of materials implied including the materials providing “fitness for the intended purpose.” What does have to be proved, for example, is whether a “dwelling” is unfit for habitation, that would be for example, determined by a lack of compliance with the building regulations or some other legal requirement to prevent occupation of any new building/works.

The BSA, effectively improves the existing legislation by introducing policing powers, which also include criminal proceedings with a possible two-year prison sentence or fines where defective dwelling buildings have been constructed using illegal materials. There are new provisions for the issue of Building Liability Orders, Remediation Contribution Orders and claims against Manufacturers, and with this comes significant changes to limitation periods making claims possible in the case of wall cladding in high rise buildings over 11m high going back 30 years. It is now a criminal offence to knowingly install defective and dangerous materials or work of all kinds, not just cladding, to any building with a dwelling or dwellings after 28 June 2022. Anyone connected to the construction of any building falling foul of the BSA can be sued, prosecuted, fined or imprisoned depending on the gravity of the offence. The legislation pushes aside any attempts of persons trying to escape responsibility with arguments that their limited firms are dissolved or shells. Personal prosecution is now reality.  The Health and Safety Executive together with any appropriate assisting authority are the regulators given the power by the legislation. It is for them to investigate and prosecute anyone connected including professionals, designers, suppliers, building control, manufacturers, building insurance warranty providers and all contractors.

Arbicon have carried out defects investigations and have worked on numerous high-rise residential buildings and have prepared CPR 35 compliant Expert Reports on the defects including importantly fire safety. It is unfortunate, that developers cut corners and leave out essential fire protection measures such as fire barriers, as well as putting in flammable cladding, which is then missed by building control who wash their hands of any liability. Not anymore, jail, personal fines, liability orders beckon and for failures going back  30 years. There is also of course nothing to stop civil claims being made using say a Claims Consultant / Expert such as Arbicon to carry out investigations and the production of CPR 35 Expert Reports on the building compliance and even using. The process of obtaining liability and payment orders can be swift if adjudication is used where construction contracts are involved.

Typical examples of residential buildings in the spotlight are blocks of flats and student accommodation buildings, a considerable number of which have been constructed using cladding. Leaseholders are often made responsible for the major replacement and repair work under their leasehold agreements, but now those who designed, supplied and installed the defective work have been made to take responsibility by statute plus the added liability of criminal prosecution under the BSA.

In conclusion, the changes to the  limitation periods are important,  that is the time to make a formal claim is significantly extended. The basic limitation period under statute was six years from the date of the right for action. That changes to 15 years for all future claims for defective products and works in dwellings and in the case of buildings falling under the Defective Premises Act 1972 and high-rise buildings it goes back 30 years from the date the BSA came into force, which equates to 28 June 1992.

The liability in essence under the BSA in dwelling buildings will be where:

• There is a failure to comply with a construction /cladding product requirement in relation to cladding or other defective construction;
• A misleading statement is made when marketing or supplying that construction / cladding product or other defective construction;
• A person purposefully manufacturers any construction / cladding product or other defective construction that is defective.

Criminal prosecutions, claims and orders are likely to snowball in the coming months as the HSE gears up to tackle what must affect most buildings with cladding with dwellings in them.

If you have a defective building or cladded high rise residential building, you might be affected by this legislation. If you need Expert advice on the implications or an RICS Expert Witness / CPR35 compliant Report or want to know more about starting a claim we will be pleased to discuss this in a consultation. Alternatively, you may have been personally involved in supplying or constructing such buildings and worried and would like to book a consultation, please call us to book with one of our Directors.