黑洞社区

Leaseholder protections

Announcing, the bill last year, DLUHC said the legislation will usher in 鈥済round-breaking reforms to give residents and homeowners more rights, powers and protections鈥�.

These protections have been subsequently strengthened through further amendments over the past few months. The 黑洞社区 Safety Act will amend the Defective Premises Act (DPA) to increase the time period for retrospective compensation claims from leaseholders from six to 30 years, rather than to 15 years as first suggested last summer. It will be extended to 15 years for claims on new work.

The Construction Industry Council warned in February this could reduce the availability of insurance and prevent smaller companies from operating in housing development. It said: 鈥淎 retrospective strict liability of 30 years for such defects goes well beyond the changes needed to deal with the problem of unsafe cladding and the 30 year limitation period does not align with contractual obligations and could lead to an unfair reallocation of risk through the supply chain.鈥� CIC also said it may be difficult to pay claims from up to 30 years ago as documents required to make or defend claims may have been destroyed.

However, Andrew Mellor, architect and government advisor, said this would also likely make it difficult for claimants to bring successful challenges.

He said: 鈥淭he resident or group of residents or building owner who is bringing the claim forward has to prove that the building cannot be inhabited effectively as a result of these defects, it鈥檚 going to be challenging as there is little case precedence for that.鈥�

Mellor said however that there will be implications for costs and resources as businesses have to keep records for longer, while there will likely be a large number of claims coming forward as 鈥榥o-win, no-fee鈥� companies approach building owners.

However, retrospective claims under the amended DPA are now thought to be less likely to be used than previously, following the passing of another set of amendments to bring in what ministers refer to as a 鈥渨aterfall鈥� system. This is aimed at prohibiting leaseholders in blocks above 11m in height being charged for cladding works.

This brings in a legal structure which sets out an order of precedence to liabilities for costs.

The idea is that developers and cladding manufacturers should initially bear the brunt of costs, and where they cannot be identified or don鈥檛 have the funds, liability passes to the building owner or freeholder. Only after that does the leaseholder have any liability, and then only up to a cap of 拢15,000 in London and 拢10,000 in the rest of the country on non-cladding work only. These protections are expected to come in to force in the next couple of months.

Gateways and the golden thread

Gateway points, designed to ensure building safety regulatory requirements are met at different stages of the design and construction process

The first of these - gateway one- came into effect through planning regulations last August, and require that developments involving high-rise residential buildings  demonstrate they have been designed with fire safety in mind before planning permission is granted. However gateways two and three are not expected to come into effect for high-rise blocks until around 12 to 18 months from now.

> Also read: Key principles of Hackitt鈥檚 golden thread

These parts of the bill have not been significantly changed although much of the specific detail will be passed through secondary legislation in the coming weeks.

Under gateway two, prior to construction, an application to the new 黑洞社区 Safety Regulator containing the full design intention must be submitted, replacing the 鈥榙eposit of plans鈥� stage in the planning process. Construction can鈥檛 begin until the regulator is satisfied the plans meet building regulations and do not contain 鈥渁ny unrealistic safety management expectations鈥�. Duty holders will also have to submit information to the regulator to demonstrate how their proposals comply. Gateway three is the final completion phase at which documents are handed over to the building owner.

Throughout, developers must create, hold and maintain a golden thread of information which will 鈥渆nsure that the right people have the right information at the right time to ensure buildings are safe, and building safety risks are managed throughout the building鈥檚 lifecycle鈥�. This must be handed over to the regulator as part of the third 鈥榞ateway鈥�.

A swathe of mandatory reporting and registration requirements will come into effect around 12 to 18 months from enactment. This includes mandatory reporting to the new 黑洞社区 Safety Regulator of prescribed fire and structural safety occurrences; mandatory registration of building inspectors and building control approvers and mandatory registration of occupied high-rise residential buildings with the 黑洞社区 Safety Regulator.

Timeline

The government last year set out a rough timeframe for various provisions in the act to come into effect. 黑洞社区 has sought clarity on whether this timeline still stands but this is what the government has previously said:

Next 12 months 

• Establishing the Residents鈥� Panel within the 黑洞社区 Safety Regulator
• Extending the limitation period of the Defective Premises Act 1972 retrospectively to 30 years - and applying this Act to refurbishments prospectively
• Additional powers for the regulation of construction products, including paving the way for a national regulator for construction products, which is being established within the Office of Product Safety and Standards (OPSS)
• Changes to the Regulatory Reform (Fire Safety) Order 2005 to ensure 鈥渞esponsible persons鈥� are more clearly identified and that they record their fire risk assessment in full
• Strengthening the powers of the Architects Registration Board to monitor the competence of architects
• In addition 黑洞社区 understands the 鈥榳aterfall鈥� system of leaseholder cost protection is also expected in the next few months, as is the developer pledge on fire safety costs

 12-18 months

•  Establishing the 黑洞社区 advisory committee and industry competence committees
• Setting up the Industry Competence Committee within the 黑洞社区 Safety Regulator to help it perform its functions to assist and encourage the improvement of competence in the built environment industry
• New 鈥榞ateways鈥� to ensure rigorous assessment of regulatory requirements to ensure building safety and regulatory compliance is considered at each stage of a building鈥檚 design and construction
• A targeted developer levy, which will apply only when developers seek building control approval to develop certain high-rise residential and other in scope buildings in England
• Mandatory reporting to the new building safety regulator of prescribed fire and structural safety occurrences
• The requirement to create, hold and maintain the golden thread of information
• Mandatory registration of building inspectors and building control approvers
• Mandatory registration of occupied high-rise residential buildings with the building safety regulator
• New requirements on duty holders to have clear accountability and statutory responsibilities as buildings are designed, constructed and refurbished
• New duties on the accountable person to manage building safety risks in occupied high-rise buildings, including duties to engage with residents
• New duties on residents to ensure each other鈥檚 safety by making sure their actions do not adversely affect the safety of their building
• New requirements for construction products included on the safety-critical list and the requirement for construction products to be safe, with strengthened oversight and enforcement powers to be used by the national regulator for construction products to operate effectively