The Building Safety Act 2022 (the "BSA 2022") creates many new criminal offences. These impact those involved in the construction of a new building, both during the early phase of development, and after a building is complete. Some offences will extend right through a building's life, long after construction has finished.
Understanding these offences should be a key objective for those in the property industry, whatever your involvement in the lifecycle of a building.
Pursuant to the BSA 2022, Authorised Officers are responsible for investigating and reporting to the Building Safety Regulator on potential breaches of the BSA 2022 and other building safety issues.
If an Authorised Officer believes it is necessary to enter a non-domestic premises, for example to ensure building safety regulations are being adhered to, they can do so without a warrant at any reasonable time. They may seize evidence and may take photographs or recordings. They must obtain permission to enter a domestic premises, once they have done so, they have similar investigatory powers. Under section 23 of the BSA 2022, any person who intentionally obstructs an Authorised Officer in carrying out their duties commits an offence.
The Authorised Officer has the power to demand information, within a certain time frame, in order to carry out their investigation. They can require that suitable facilities are provided in order to enable them to review any document, or any other 'assistance...as may be specified, by such time as may be specified' in connection to this. If a person fails to comply without any 'reasonable excuse'', this is an offence, triable either way and potentially resulting in a prison sentence of 2 years, a fine, or both.
Accountable Persons/Principal Accountable Person
Accountable Person for a higher-risk building is defined at section 72 of the BSA 2022 as a person who holds a legal estate in possession in any part of the common parts or a person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts. Principal Accountable Person for a higher-risk building is defined at section 73 of the BSA 2022 as in relation to a building with one accountable person, that person and in relation to a building with more than one accountable person, the accountable person who (i) holds a legal estate in possession in the relevant parts of the structure and exterior of the building, or (ii) is within the definition of accountable person provided at section 72(1)(b) of the BSA 2022 because of a relevant repairing obligation in relation to the relevant parts of the structure and exterior of the building.
Accountable Persons and Principal Accountable Persons must comply with a number of duties pursuant to the BSA 2022. These include: registering a higher-risk building with the Building Safety Regulator; applying for a Building Assessment Certificate; carrying out regular assessment of building safety risks; managing safety risks; producing 'safety case reports' with a summary of building safety risks; providing safety case reports to the Building Safety Regulator; reporting to the Building Safety Regulator on safety risks; and, keeping records of all of the above. Accountable Persons or Principal Accountable Persons must also provide all of their information to any successor. Failing to comply with a number of these obligations is an offence, the bulk are 'strict liability' offences, which means the fault elements of the offence are not required to be proved.
When will these come into force?
No dates have been published yet, and will be set out in secondary legislation. However, the intention is for offences under the BSA 2022 to come into effect 12 – 18 months following Royal Assent (April 2022). The offences are likely to come into effect anytime between April – October 2023, however this time frame is not concrete and the offences could come into effect sooner.
What does this mean?
The offences under the BSA 2022 are not limited to the above. A new era of building safety has begun, with a new system of tough measures that will impact many parties involved in a building's lifecycle, and as time goes on, this system will grow only more complex as it develops through secondary legislation. For parties involved in a building's lifecycle, it is time to get educated on the BSA 2022 and the offences arising out of it. The clock is ticking.
This blog is part of a series published by Howard Kennedy LLP on the Building Safety Act. For more information please contact Jim Fairlie, Sharon Stark or Stuart Duffy. For other blogs, please click here.