Building Safety Act 2022: Changes to the construction products regime & new potential causes of action against manufacturers

What is a construction product?

Although what constitutes a construction product is not considered under the BSA, the BSA within the provisions that relate to construction products refers to other legislation and regulations which do define construction product(s). This will be a good indication of how construction products will be defined in the forthcoming regulations. 

The relevant definitions of a construction product are as detailed below:

• Regulation (EU) No. 305/2011 (regulation laying down harmonised conditions for the marketing of construction products) – “any product or kit which is produced and placed on the market for incorporation in a permanent manned 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 [that is, buildings and civil engineering works”.
• The Construction Products Regulations 1991 – “any product which is produced for incorporation in a permanent manner in works”.

The current construction products regulations

Before the Building Safety Act and until the regulations are brought into play, existing regulation on the marketing of construction products are mainly covered by the Construction Products (EU Exit) Regulations 2019 & 2020, which are harmonised by European standards and UK standards, thus creating “designated standards” for construction products. Products which were not caught under the “designated standards” may still be covered by the technical assessment document (a document drawn up by technical assessment bodies in agreement with the Secretary of State).

Following the Grenfell tragedy, the government has sought to fill the gap in the current construction products regulatory regime where many construction products, which are not subject to a designated standard or do not conform to a technical assessment, fall outside the remit of the existing regulatory regime. As a consequence of existing legislation, the government cannot require the products which fall outside of the regime to be withdrawn from the market regardless of whether they can be used safely (an example being aluminium composite material (ACM) cladding which was considered a primary cause of the spread of fire in Grenfell).

The future construction products regime

To achieve the ambition mentioned above, the Building Safety Act has introduced the notion of “safety-critical products” which are “construction products contained in a list contained in construction products regulations”. Although this list is yet to be drawn up, the BSA provides that a construction product may only be included in the list in the event that:

• any failure of the product would risk causing death or serious injury to any person; and
• the product is not one for which there are designated standards.

As such this provides the government with an effective means for regulating those construction products which fall outside of the scope of the designated standards. The future construction products regulations may include (amongst other provisions) provisions which impose requirements on persons carrying out activities in relation to safety-critical products.

To further avoid any construction products slipping through the cracks, the BSA allows for the impending construction products regulations to:

• Prohibit the marketing or supply of construction products which are “not safe products”.
• Impose other requirements for the purpose of securing construction products which are not safe products are not marketed or supplied.
• Impose requirements in relation to the marketing or supply of construction products which are safe products.

The new regulations will require manufacturers to consider the risks associated with their products to ensure that they can advise their clients of these risks should the new regulations require them to do so and as a matter of best practice.

New cause of action against manufacturers

The Building Safety Act introduces potential new causes of action against manufacturers for defects relating to cladding products. The first cause of action grants someone with a legal or equitable interest in a dwelling the legal standing to bring an action against a manufacturer should all of the following relevant conditions be met:

• the manufacturer at any time after 28 June 2022 (a) fails to comply with a construction product requirement in relation to a construction product (b) makes misleading statements in relation to the construction product when marketing or supplying the product or (c) manufactures a construction product which is inherently defective;
• the product is installed in a relevant building in the construction of the dwelling building;
• once completed the dwelling is unfit for habitation; and
• the relevant product is the reason for the dwelling being unfit for habitation.

The limitation period for this cause of action is 15 years from the date on which the relevant works were completed (where the works are carried out in the construction of the relevant building, this will be when the construction of the building is completed. Otherwise, completion of the relevant works will occur when the construction of the relevant dwelling is completed) although given the first condition which needs to be satisfied for a cause of action to arise, liability under this part of the BSA is limited to claims which arise after the date on which the specific section came into force (28 June 2022).

Nevertheless, there is an additional cause of action against manufacturers under the BSA for the misleading marketing of defective products and inherently defective products which does apply both prospectively and retrospectively. The conditions which a potential claimant is required to meet in bringing an action are similar to those in the first cause of action except the relevant construction product must have been manufactured, marketed or supplied before 28 June 2022. The following limitation periods apply to this cause of action:

• There is a 30-year limitation period where the relevant works are completed before 28 June 2022.
• There is a 15-year limitation period where the relevant works are completed after 28 June 2022.

Final considerations

We are likely to see an increase in claims made against manufacturers for defective cladding in the near future as a result of the expansion of liabilities on manufacturers of construction products and the tightening of the proximity between manufacturers and those with a relevant interest in a dwelling. The expected release of the report on Phase 2 of the Grenfell Enquiry and further guidance on the BSA may act to embolden potential claimants to bring actions under the BSA.

Manufacturers should keep abreast of any developments in the BSA with specific attention on the construction products regulations which are yet to be introduced.

If you have any queries or would like to discuss any of the points raised in this blog, please contact Brandon Pizarro in our Real Estate team. 

For more updates on the Building Safety Act 2022, please read our latest blogs:

• Building Safety Act 2022: Building liability orders
• Building Safety Act 2022: Changes to the Defective Premises Act 1972