Airspace developments are on the rise; they are a strong contender for addressing the national housing shortage and with the introduction of permitted development rights in August 2020 to allow upward extensions without the need for full planning permission, the prospects for "building up" are looking optimistic. However, just as developers (and building owners) are beginning to find their feet and gain confidence in delivering airspace schemes, along comes the requirements of the new comprehensive framework implemented by the Building Safety Act 2022 (BSA).
So, what do you need to know?
The changes introduced by the BSA are a root and branch overhaul of building and fire safety laws in England. The Act's widespread remit includes the following aspects that developers and building owners considering airspace development need to consider:
• New building control regime for buildings at least 18 metres in height (ie higher risk buildings) or having at least 7 storeys
• New limitation periods have been implemented extending qualifying claims, such as those under the Defective Premises Act, to a 15-year liability (30 years for retrospective claims)
• Creation of criminal penalties for certain breaches, for example, occupation of a higher risk building without a completion certificate
• More robust provisions relating to construction products and the appointment of a construction products regulator
• Gateways (ie stages) for planning, construction and completion
• Establishment of a new Building Safety Regulator under the Health & Safety Executive with oversight for building safety
• 'Golden thread' of information – a new requirement to maintain robust records
• The High Court has jurisdiction to make building liability orders against developers who have failed to meet a relevant liability under the Defective Premises Act 1972/the Building Act 1984 as a result of a risk from fire spread or of structural failure
• New Build Homes Warranties to provide cover for 15 years
Changes, such as the longer limitation periods, are causing widespread concern throughout the industry and is of particular relevance to construction professionals and their insurers.
Developers embarking on airspace development need to be mindful that certain provisions of the BSA, for example, the gateway requirements, when in force, could have time and cost consequences for projects leading to possible delays which they will need to factor into their timetables. For example, for higher risk buildings, gateway two, the stage before construction begins, currently permits the regulator a 12-week approval period to consider plans and documents.
So, before you decide to 'build up', take some time to drill down and understand the implications of how this complex legislation may affect your development.
Whilst the BSA may seem overwhelmingly complex, stay tuned as we will be considering some of the key aspects for developers and building owners alike, to aid your journey through an airspace development.
In the next series, we will look at New Build Homes Warranties, which is something I have discussed before in our series of blogs on the Building Safety Act 2022. Please click here to see that post."
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