The RFA’s director Mick Platt points out some shortcomings and consequent delays in remediating building with fire safety defects.

It is now one year since the Building Safety Act 2022 came into force, intended to be the most substantial legislative response to the nationwide building safety crisis that ensued after the Grenfell Tower fire in 2017.

While the primary objective of the legislation was to make buildings safe, the actual impact was to shift the narrative away from those responsible for the crisis – the government itself through its botched approach to regulation, as well as developers and product manufacturers – by apportioning liability for remediation works onto leaseholders and building owners, most of whom played no role in the creation of the crisis.

The primary legislation is widely regarded as being poorly drafted and there remains a patchwork of secondary legislation, government funding and building safety schemes, which industry must now reckon with, alongside the liabilities set out in the primary legislation.

The latest government data shows a total of 797 high-rise buildings have been completely remediated out of the 3,839 that have been identified with unsafe cladding. This is in addition to the estimated 8,890 further medium-rise buildings that also require ‘life-critical’ safety work, not to mention an unknown number of low-rise buildings not protected by the Act that also face the prospect of having to have defects remediated.

These statistics alone show there is a clear need for an improved approach to address the building safety crisis, while holding those responsible to account. The scope of the crisis goes beyond external cladding systems as there is increasing evidence that corners have been cut internally, and that some buildings may have been signed off despite not being built in accordance with the approved plans.

For the sake of leaseholders’ safety, if the pace of resolution is to quicken, it will require not just acknowledgement of the plethora of genuine issues, but also solutions from government.

An inconsistent regulatory and funding regime

Following last-minute amendments at the final legislative hurdle of the Building Safety Act 2022 passing through the House of Lords, a ‘waterfall’ payment model was introduced by the government.

The ‘waterfall’ promoted the apportioning of liability over providing a consistent means of accessing funding to fix unsafe buildings quickly. This has led to delays in arranging funds and getting remediation works on site.

Although the government has, after some persuasion, made funding available for the remediation of external cladding systems, the funding regimes only seek to make buildings ‘half safe’ as none of them cover internal fire safety defects such as missing compartmentation or fire stopping.

With obligations often falling on freehold investors, who were not responsible for the building safety crisis, and who may not have the funds to match the newly imposed liabilities, the government has created a regime that focuses on lengthy negotiation and litigation, rather than the need to remediate promptly and provide certainty to leaseholders.

Ongoing issues with the Developer Pledge

Instead of holding developers to account via legislation, the government asked developers to sign up voluntarily to a “pledge”.

The ongoing rollout of this pledge has further slowed the progression of remediation projects as the terms of the pledge were agreed between government and developers, without reference to building owners.

Building owners have, as a result, been forced to commence lengthy negotiations with all the developers to put in place legal agreements relating the terms of remediation projects. Given the Pledge is still gaining signatories two years after its introduction, the government’s unpredictable approach to securing developer commitments continues to prolong the risk of leaseholders living in unsafe buildings.

Significant inconsistencies surrounding developer liability under the Building Safety Act 2022 and the Self Remediation Terms (SRT) make the process even more difficult to navigate, leading to increasing pushback from developers who treat their liabilities as being defined only by the SRT rather than the legislation.

Leaseholders and building owners have been made liable for a crisis caused by weak regulation and negligent construction practice, and while remediation is progressing, the issues outlined above mean prolonged delays will persist.

Given that little has been done to improve standards via the regulatory regime, and the less-than-optimal progress shown by official data, a future government will have to seriously consider an alternative approach to the current building safety regime.