Construction and health and safety

Recent developments

Building safety: could your business
be exposed?

The dust is starting to settle from the introduction of a plethora of building safety legislation and guidance over recent years. Whilst one might hope for a degree of leniency from regulators and other parties for technical breaches while the industry is grappling with vast swathes of new regulation, this goodwill will start to dissipate as time passes. The majority of the Building Safety Act 2022 (BSA) has now been implemented (with the latest guidance released in October 2024), this is a good time for businesses to take stock and ensure that they have understood when work carried out may attract liability under the BSA. In this article, we highlight some of the more widely applicable duties.

Who could be impacted by the BSA?

It's no surprise that the BSA imposes duties on developers, contractors, designers, building inspectors, building control approvers, fire safety professionals and construction product manufacturers – and these businesses are now likely to be well-versed on how the BSA affects them; however, a wide range of individuals and businesses are also at risk of various types of liability (criminal, civil, regulatory) under the BSA. These include:

persons with control of workplaces (eg employers, building owners and landlords)
individuals, companies or public bodies commissioning building work.

In addition, some liabilities attach to anyone (including corporates and directors or officers) who fails to comply with various rules or regulations regardless of their role.

As such, risk managers and GCs in all industries should take a moment to ensure that they are confident in identifying potential exposure under the BSA and that their policies or risk assessments are up-to-date.

Special rules apply to works on high-rise buildings (HRBs), which are buildings that are at least 18 metres in height or have at least seven storeys and contain at least two residential units (or one residential unit if in Wales). Whether the definition includes care homes, hospitals, secure residential institutions, hotels, military barracks and living accommodation for military personnel depends on whether the building is in occupation and whether the building is in England or Wales. However, HRBs must have been registered with the Building Safety Regulator (BSR) by 30 September 2023, so residents, occupiers or owners of HRBs should already be familiar with their duties.

Which duties could apply to any business or individual, regardless of industry?

The following criminal sanctions can, in theory, apply to anyone; however, companies or individuals likely to fall foul of these rules are likely to be in organisations involved in construction. However, anyone could be asked to provide information to the BSR; for example, any occupant of premises or any business or individual even peripherally involved in real estate.

The BSA provides for criminal sanctions to apply to anyone who:

knowingly or recklessly provides false or misleading information to the Building Safety Regulator (BSR) (in relation to building safety or to avoid or halt enforcement action) or to a fire safety inspector (or failing to comply with their instructions or requirements)
fails to comply with a compliance notice (without reasonable excuse) or a stop notice (unless all reasonable precautions and all due diligence were exercised to avoid contravention)

intentionally obstructs an enforcement officer or impersonates an enforcement officer with intent to deceive
breaches the building regulations.

The first of these presents a particular risk. While individuals will always want to present information in the best light, knowingly taking the risk that a particular wording will mislead could attract criminal sanctions. Businesses should adopt a particularly scrupulous approach to matters of building and fire safety given the seriousness of these issues, the potential sanction and reputational damage that could arise.

The latter three criminal offences are all instances where, if the offender is a corporate body, its directors, managers, secretaries or other officers would also be liable if they:

consented or connived in the act
the offence was attributable to their neglect.

Employers' fire safety duties

Businesses move premises from time-to-time. 800,000 new businesses are started annually in the UK according to some reports. Don't be caught out by the requirements of the Regulatory Reform (Fire Safety) Order 2005, which requires fire risks to be assessed and managed in buildings of any height containing two or more domestic premises.

If the premises is a workplace under the control of the employer, the person responsible for this (the "responsible person") may be the employer, building owner or landlord. If the building is not a workplace, the responsible person will be the person who has control of the premises in connection with the trade, business or undertaking carried out (for profit or not); which could also be the owner.

The responsible person must carry out, or appoint a competent person to carry out, an assessment of the fire risks to people on the premises and within the vicinity and review it regularly. The fire risk assessment must be in writing and provided to residents. In an HRB, the Responsible Person must cooperate with the Accountable Person.

Business and individuals commissioning building works

The BSA imposes duties on those commissioning building works, and businesses of any size may at some point need to arrange construction works. In that event, duties apply such as the duty to make suitable arrangements for planning, managing and monitoring a project so that it complies with all relevant requirements and to consider the fire safety needs of a project at the early design and planning stage, before obtaining planning permission.

Conclusion

Although the bulk of the BSA has been implemented, some provisions have yet to come into force; namely:

Section 38 of the Building Act 1984 which provides for breaches of building regulations to give rise to civil liability
mandatory new home warranties and requiring them to provide cover for 15 years
the Building Safety Levy (aka the “gateway two developer levy”)
construction products manufacturers' obligations to contribute to the cost of remediation work on unsafe buildings
full implementation of the building safety regime for Wales.

Having got to grips with the current regime, businesses cannot yet breathe a sigh of relief as reform of building safety in the UK continues apace. In late September 2024, the final phase 2 report of the Grenfell Tower Inquiry was released, and it is anticipated that this will lead to further legislation to implement the recommendations of the commission. In addition, the BSA continues to be amended; most recently by the Leasehold and Freehold Reform Act, which came into force on 31 October 2024 (read our summary here).

Kat Cusack
Partner
+44 7711 353811
kat.cusack@rpclegal.com

Emma Wherry
Senior Associate
+44 7113 53786
emma.wherry@rpclegal.com

Aimee Talbot
Knowledge Lawyer
+44 20 3060 6943
aimee.talbot@rpclegal.com