IMPLICATIONS OF THE NEW CONSTRUCTION PRODUCT REGULATIONS

Louise Mansfield, Legal Director at Bevan Brittan, takes a closer look at the Building Safety Act, expected to be fully implemented in October, and addresses the new Construction Product Regulations, what they will entail and how they will impact the public sector.

he much-anticipated Building Safety Act 2022 (‘BSA’), which was introduced in response to the Grenfell Tower tragedy, will create a number of new requirements that apply to the construction process.

The BSA is expected to be fully implemented by October this year and one significant change is the introduction of new regulations and a new regulator to monitor the quality of ‘construction products’ to ensure they are safe for their intended use. This was identified following the Grenfell Tower fire as an area that needed additional regulation, as the existing regulatory framework was too narrow and did not cover many products used in construction, including ACM cladding, meaning there was no power to withdraw such products from the market even where they could not be used safely.

The new regulations (which are yet to be published) will impact public sector providers responsible for constructing and maintaining all buildings, including residential high-rise buildings (‘HRBs’).

Overview of the new Construction Product Regulations

A ‘construction product’ has a broad definition and is likely to encompass any product produced for incorporation in permanent structures (i.e. all construction products). The new regulations will prohibit the marketing or supply of construction products that are not considered “safe”. There will be additional requirements for a list of “safety-critical products”, yet to be determined, but where a failure of such products could risk death or serious injury and where there is not an existing designated standard that the products have to conform to.

The new National Regulator for Construction Products will be charged with monitoring the new regime and taking enforcement action where required. It will also have new powers to take action where false statements or other misleading or inaccurate claims are made about the performance of a construction product, including rights to carry out market surveillance, search premises, seize non-compliant products and issue fines for non compliance.

Section 148 of the BSA introduces a new mechanism for damages to be claimed from a manufacturer of a construction product within 15 years from the date the “relevant works” were completed, by any person with a “relevant interest” in a building/dwelling for personal injury, damage to property or economic loss suffered as a result of a construction product being installed that did not comply with the relevant requirements and which renders a building/dwelling unfit for habitation.

Key considerations for public sector developments

The new regulations should make it easier for public sector organisations to ensure that when construction is taking place, only safe products are used, providing appropriate due diligence procedures are in place. However, it is important to note that:

1. Manufacturers will only be required to assess the risks of their products according to their intended and likely uses. Manufacturers will not have to consider every feasible use of the product.

2. The new regulations will only require manufacturers to reduce those risks as far as possible and provide information about any remaining risks. There is no requirement to remove all risks, meaning remaining risks must still be managed.

3. The duties under the new regulations for products manufactured outside GB will fall upon the importer not the manufacturer and so it is important to consider who this will be.

It is expected that the new regulator will work closely with other regulators to coordinate regulatory action, particularly the new Building Safety Regulator, which will oversee the safe design, construction and occupation of HRBs. In relation to HRBs in particular, it is important that information about the construction products used is retained for inclusion in the ‘golden thread’ of information about a building, a further requirement under the BSA.

Minimising the risk of non compliance

To minimise the risk of non compliance and to ensure buildings are safe, it is vital that public sector organisations conduct supply chain due diligence to ensure that all new construction products are both compliant with the new regulations and safe for their intended use and also consider carefully the procurement processes for any products purchased from outside GB to avoid inadvertently taking on the duties under the new regulations.

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