Assessing the Building Safety Act's new product safety regime

A great deal is being written about the Building Safety Act 2022 (BSA), and for good reason. There are, however, a number of aspects that have a lower profile at the moment but which are likely to become increasingly significant. One of the most important of these is the regulation of construction products.

Construction products and cladding products are dealt with in sections 146 to 155 and in schedule 11 of the BSA. These provisions came into effect on 28 June 2022.

The term “construction products” is not actually defined in the BSA. There are, however, references to two other construction-related regulations. These are the Construction Products Regulations 1991, which define a construction product as “any product which is produced for incorporation in a permanent manner in works” (“works” being construction works, including both building and civil engineering works) and, secondly, Regulation (EU) No. 305/2011, which defines a construction product as “any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof and the performance of which has an effect on the performance of the construction works with respect to the basic requirements for construction works”. Consequently any products forming part of buildings or civil engineering works are likely to fall under the new BSA regime.

The BSA also covers “cladding products”, which are defined broadly as “a cladding system or any component of a cladding system”.

We can expect further regulations and guidance around the marketing and supply of construction products. There is also likely to be an indication of what will be prohibited in terms of unsafe products, the development of designated standards and technical assessments for construction products and “general requirements” and “safety-critical products”. The intention is to extend the regulatory regime in this area well beyond the current legislative framework, which only covers around 400 product families.

We can expect further regulations and guidance around the marketing and supply of construction products [along with] the development of designated standards and technical assessments

Liability for construction products arises in a “relevant building”, which consists of a dwelling or a building that contains two or more dwellings. This is a broad definition, consistent with the intention of the legislation to be widely applicable to all construction products marketed in the UK.

The BSA creates two categories of product:

• A “designated product”, which covers the same products regulated by the existing EU framework
• A “safety critical product”, which the government can add to a statutory list and regulate separately.
• If some construction products fall outside these categories, manufacturers can still be required to ensure that all such products supplied are safe.

A party can be found liable for a default relating to construction products if four conditions are met, including whether the building or dwelling is “unfit for habitation”. This is the same test as that used in the context of claims under the Defective Premises Act 1972 (DPA) so, although it is undefined in this context, the explanatory notes that accompany the BSA specify that the test is intended to be equivalent to that used for DPA claims.

The BSA also establishes liability for defaults relating to cladding products, again where four conditions are met including failure to comply with a “cladding product requirement”. Again, the “unfit for habitation” test is used.

The limitation period for construction product claims is extended to 15 years and for defective cladding products the retrospective 30-year period applies where the right to claim arose before 28 June 2022, similar to that available for claims under section 1 of the DPA. The limitation period for claims arising after 28 June 2022 is 15 years.

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Nearly a year after the BSA came into force, Testing for a Safer Future, the Independent Review of the Construction Products Testing Regime, was published. The review assesses the system for testing and certifying construction products and considers what changes can be made to increase the confidence of construction industry stakeholders and residents that construction products are safe.

The review makes the important point that construction products cannot be seen the same way as consumer products. A product used in the construction sector may develop from a raw material to a basic product into a component and then into a system or assembly and finally into the completed building. Consequently, there are concerns as to the practicality of the proposed regulatory catch-all that captures all products, whether consumer or construction, and extends a principle primarily designed for standalone consumer goods to construction products. How will the review’s findings be reflected in future regulation in this area?  

Having persuaded the residential developer community to get behind his Responsible Actors Scheme, communities secretary Michael Gove is now turning his attention to the construction products manufacturers, who have to date been less enthusiastic to sign up to any equivalent proposal. Let’s see what happens next.

Simon Lewis is a partner in the construction and engineering team at Womble Bond Dickinson (UK). This article was co-written with Deborah Robinson, a legal director in the construction and engineering team