2024 is set to be a legally charged period for local authorities, particularly in the area of building safety and construction.

The shadow of the Grenfell Tower tragedy continues to shape the discourse on building safety reforms. The much-awaited final report of the Inquiry is still in preparation, and as per the Inquiry's November 2023 newsletter, it is not expected to be published before April 2024. The panel aims to submit the report to the Prime Minister before 14 June 2024, the next anniversary of the tragic fire, with public release shortly after that.

The issue of cladding remains a central point of contention, keeping courts active. This is expected to persist through 2024, especially in the light of the Building Safety Act 2022 (the BSA 2022) and the drastic changes affecting the whole of the construction industry. The BSA 2022 introduces a retrospective 30-year limitation period for claims under the Defective Premises Act 1972 (see our insight on the URS case). Concerns regarding reinforced autoclaved aerated concrete (RAAC) in schools and hospitals are likely to further fuel this trend, with anticipated claims against affected public buildings (see our insight on RAAC and its implications for local authorities).

Local authorities must navigate the once-in-a-generation changes brought about by the BSA 2022, which has significantly affected various aspects of the construction industry. Most provisions under the BSA 2022 are enshrined in secondary legislation which took effect on 1 October 2023. However, certain elements are still pending, including the implementation of section 38 of the Building Act 1984 to introduce civil liability for breaches of building regulations, the mandatory requirement for new home warranties with a 15-year coverage, the execution of the Building Safety Levy, and regulations for construction product manufacturers contributing to remediation work on unsafe buildings.

The Joint Contracts Tribunal (JCT) has released an update on the upcoming edition of its suite of contracts. Notable changes from the 2016 editions include the adoption of gender-neutral language, increased flexibility regarding electronic notices, and amendments aligning with the changes introduced by the BSA 2022.

As developments unfold throughout 2024, we remain committed to keeping our clients informed of these dynamic changes in the legal landscape surrounding building safety and construction.

What you can do now

• Conduct any outstanding structural surveys to ascertain whether they contain defective cladding or RAAC, and the date on which those elements were incorporated, so that we can ensure that legal actions are not time-barred. We may be able to commence proceedings for historic defects that need to be remediated or assist you in applying for the Cladding Safety Scheme.
• Ensure that your buildings of 18m or 7-storeys high comply with the Higher-Risk Building (HRB) regime of the BSA 2022, and in particular that the Accountable Person (the AP) for those HRBs registered them with the Building Safety Regulator by the deadline of 1 October 2023. If the HRBs still have not been registered, they should be as a matter of priority. We can provide advice on the AP, the registration of the HRBs and assist you with litigation proceedings at the First-Tier Tribunal.
• Review any works completed in buildings of 11m or 5-storeys high and consider whether tenants benefit from the leaseholder protections regime of the BSA 2022. We can assist with the historic works contemplated by the BSA 2022 and the obligations relating to the Landlord’s Certificate.
• When using standard form contracts, such as JCTs or NECs, ensure that they take into account the effect of the BSA 2022. Notable provisions that may need to be considered include the 30-year limitation period under the Defective Premises Act 1972, the risk of delays and responsibilities when making a building control application (Gateway 2), or the information to be electronically stored as the “Golden Thread”.

Housing Forward View 2024

This article is part of Capsticks’ Housing Forward View 2023. Read the other articles featured in this publication below:

• Finance
• Governance
• Housing development

How Capsticks can help

To discuss how this may affect your organisation, please get in touch with Mathieu Quenin and David Firth