Part 4 of The Building Safety Act 2022 (“BSA”) will come into force by 28 October 2023, and applies to all Higher-Risk Buildings (“HRB”). Part 4 provides that every HRB must have an accountable person (“AP”) responsible for the safeguarding its common parts against building safety risks, and a Principal Accountable Person (“PAP”) who reports to the Building Safety Regulator (“BSR”).
Common parts means the structure and exterior of the building, and any part of the building provided for the use, benefit and enjoyment of the residents of more than one residential unit.
Under the BSA Building Safety Risks include the spread of fire, structural failure, and any other prescribed matter as laid down in regulations laid before Parliament by the Secretary of State.
Under the BSA, no HRB, or further residential units added to an HRB, can be occupied until a completion certificate is issued under Building Regulations, and to permit occupation is a criminal offence. A PAP commits an office if an HRB is occupied before it is registered with the BSR, although the BSA does envisage a defence where there may be a ‘reasonable excuse’ (not defined) for occupation before registration.
BSA section 72 prescribes who is an AP but the drafting is tortuous. At its simplest, any freeholders or leaseholders (‘Estate Owners’) with title over the common parts of an HRB will be AP’s, but not where:
The BSA specifically provides that the AP can be an entity which has a repairing obligation in relation to any part of the common parts (even if they do not hold a legal estate in any part of the building, i.e., those appointed to repair).
Where chains of leases exist, the BSA provides that for the purposes of identifying the AP, the relevant legal estate will be the highest head-lease which also carries a repairing obligation in respect of those common parts, so the superior landlord will be the AP.
A sole AP is also the Principal Accountable Person. Where more than one entity fits the definition of AP, one of them must be the PAP. The PAP will be the AP which:
Disputes concerning identity of AP/PAP are to be resolved in the First Tier Tribunal (Property Chamber).
APs must assess Building Safety Risks:
APs for occupied Higher Risk Buildings must take all reasonable steps to:
This is to encourage the AP to carry out works.
APs are under a duty to co-operate with each other in discharging their functions under the BSA.
When a PAP has assessed the Building Safety Risks they must prepare a Safety Case Report, and notify the BSR that it has been completed. The PAP would be well advised to do this as early as possible, and keep it under review. This is because the BSR can direct a PAP to apply to it for a building assessment certificate at any time, and the Safety Case Report will be the mainstay of that application, along with any other prescribed information. The PAP must respond to the BSR with their application within 28 days of being directed (and failure to do so is a criminal offence).
If the BSR is satisfied that the building safety risks are being managed properly, it grants a building assessment certificate, which must be displayed in a prominent place alongside details of the APs. If the BSR is unsatisfied it issues a notice which must also be displayed in a prominent place alongside details of the APs. If the requirements in the notice are not promptly addressed, this would result in the refusal of a building assessment certificate. It could also result in the BSR applying to the First Tier Tribunal for a Special Measures Order under which the management of building safety risks is transferred from the APs to a Special Measures Manager, at the cost of the APs, until the BSR is satisfied that those risks are being addressed.
APs are subject to detailed record keeping requirements and ongoing reporting obligations to the BSR which are connected to the maintenance and transparency of the HRB’s ‘golden thread’ information. An AP must, in prescribed circumstances, give prescribed information to the BSR by the prescribed time and in the specified way. The PAP must operate a ‘mandatory occurrence reporting system’ which facilitates and records reports from the HRB’s occupiers, so that the APs can account to the BSR as necessary. Further detailed regulations about the provision of information are awaited.
In recognition of the importance of securing the co-operation of residents, the PAP is obliged to prepare a ‘residents engagement strategy’ aimed at promoting the participation of residents in decision-making in relation to building safety risks, and to keep it under review. Residents are to receive copies of the engagement strategy. The PAP must also run a complaints system relating to building safety risks and the manner in which APs perform their duties and regulations are awaited about how complaints are to be handled, including how serious they have to be before the PAP must refer the complaint on to the BSR.
The Act also imposes corresponding duties on owners and residents not to behave in ways which ‘creates a significant risk of a building safety risk materialising’, not to interfere with safety items in common parts, and to provide information to an AP who is assessing building safety risks. An AP can in certain circumstances issue a contravention notice to an owner or resident where their actions have impacted on building safety, and can bill them for the reasonable cost of repairing or replacing safety items. There is also a procedure to allow APs to obtain access to premises. Enforcement of either step is via the County Court.
The BSR is obliged to enforce the Part 4 of the BSA and regulations made under it. This includes issuing compliance notices against APs in respect of a HRB where the AP appears to the regulator to have contravened, be contravening or be likely to contravene a relevant requirement. Failure to address such a contravention notice is a criminal offence.
Many of the specified obligations on APs carry criminal sanctions but the BSA also creates a stand-alone criminal offence, a sort of ‘ultimate sanction’ for contravention of any element of Part 4 which places one or more people in an HRB at “Critical Risk”, meaning risk of death or serious injury arising from a Building Safety Risk. Penalties include fines and imprisonment.
Standby for detailed regulations in respect of:
Developers would be well advised to bring forward their arrangements for obtaining completion certificates under Building Regulations, establishment of AP and registration with BSR or occupation will be delayed, which costs you money. The regime requires APs to be proactive in identifying and managing risks, and Safety Case Reports should be prepared in a timely fashion in case the BSR wishes to see them. The BSA envisages significant ongoing mandatory reporting obligations to BSR post-construction, and duties on APs to engage and communicate with residents in relation to the management of Building Safety Risks.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.