Implementing the Building Safety Act in Wales

The English and Welsh governments have taken different approaches to the implementation of the Building Safety Act 2022 (BSA), and are implementing change at differing speeds. It is understandable that the Welsh government is taking a more gradual approach, given that there are significantly fewer higher-risk buildings in Wales.

Below we provide an update on the position in Wales with regard to the implementation of the BSA, and what is likely to come.

Definition of a higher-risk building

The definition of a higher-risk building for the purposes of the design and construction phase in Wales (which differs from in England) has now been formalised in the Building Safety (Description of Higher-Risk Building) (Design and Construction Phase) (Wales) Regulations 2023.

It captures a building that is at least 18m in height or has at least seven storeys and (unlike England) contains one of the following:

• At least one residential unit
• A hospital that has at least one bed intended for use by a person admitted to the premises for an overnight stay
• A care home
• A children’s home.

However, similarly to England, hotels, managed accommodation, residential institutions and buildings for military use are excluded.

Building safety regulator

While the Health and Safety Executive will not be the building safety regulator in Wales, the Building Safety Regulator arm of the Health and Safety Executive is responsible for the registration and maintenance of the register of building inspectors and building control approvers in Wales. This means that there is a unified regulator and point of contact for building inspectors and building control approvers across both England and Wales.

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Whereas in England the Building Safety Regulator oversees compliance with and enforces the new regulatory regime in relation to higher-risk buildings, since April 2024 building control functions for higher-risk buildings in Wales can only be performed by local authorities, and not by private bodies. (There are transitional provisions allowing building control approvers to continue with any outstanding higher-risk building work started under the old regime and commenced by 1 October 2024, although parties should be careful to ensure the works do not fall out of the old regime in which case they would be subject to local authority approval.)

As such, those undertaking new works to higher-risk buildings in Wales must liaise with the relevant local authority to receive approval of proposals and building sign-off much as they would have done under the old regime where the local authority was the building control authority. The Welsh government has suggested there is further reform to follow for the higher-risk building control regime, likely in mid 2025.

Building liability orders and remediation contribution orders

For completeness, it is worth noting that the sections of the Building Safety Act relevant to building liability orders and remediation contribution orders extend to Wales.

Therefore in future where there is a claim under the Defective Premises Act 1972 or a building safety risk present in a Welsh building, claimants may be able to pierce the corporate veil and seek to recover their losses from an associated company of the originally liable party by obtaining a building liability order. Similarly, parties may be compelled to undertake, or contribute to the cost of undertaking, remedial works and to remedy building safety risks in Wales via remediation orders and remediation contribution orders.

What comes next

The Welsh government has been clear that its work to date represents only the first phase of reform, and that it is taking a staged approach to implementation to allow the industry to adapt to change as smoothly as possible and to cause minimum disruption.

The Building Safety (Wales) Bill is scheduled for introduction in 2025. Following the publication of the Grenfell Tower Inquiry Phase 2, the Welsh government announced that, while the development of the bill is advanced, it is taking time to reflect on the recommendations to identify where it may wish to revise its policy.

The cabinet secretary for housing and local government in Wales has indicated that the bill will include tighter regulations on higher-risk buildings, dutyholder roles, gateways, the golden thread of information, mandatory occurrence reporting and compliance, and stop notices.

A consultation was originally planned for the end of 2024 but is now set for spring 2025. However, the bill is still to be introduced before the summer recess in 2025, as originally planned.

Helen Johnson is a partner and Katie Rider an associate at CMS Cameron McKenna Nabarro Olswang