Enforcement Powers Under the BSA During the In-construction Phase

Blog Author: Natalie Pilagos – Construction Partner, Wedlake Bell


The construction industry is undergoing a transformative shift with the implementation of the Building Safety Act 2022 (BSA). As part of these reforms, the BSA introduced a regime that seeks to strengthen pre-existing enforcement powers and introduces new enforcement tools.

In the Enforcement Policy Statement (EPS) published in December 2023, the Building Safety Regulator (BSR) indicates that enforcement of the BSA, The Building Act 1984 (BA) and associated regulations reflects its overall aim to transform the built environment, ensure the safety of people in and around buildings, and to improve building standard laws.

This article will summarise the enforcement powers under the BSA specifically in relation to the in-construction phase (see our previous article on enforcement of occupational obligations of the BSA), explain the enforcement authorities’ approach to enforcement according to the EPS and outline what this means for those involved in the construction phase.

Importantly, it is a mistake to think that the BSA’s enforcement regime applies only to Higher Risk Buildings (HRB(s)) (as defined in S120D of the Building Act 1984 (as amended by the BSA) and the Higher-Risk Buildings (Description and Supplementary Provisions) Regulation 2023), as it applies to most building work. Those involved in the construction phase of all buildings should be aware of this new enforcement regime.

  1. Who is the enforcement authority?

The BSR, part of the Health & Safety Executive, is responsible for enforcing the BSA, The Building Act 1984 (BA) and associated regulations in respect of HRBs.

For non-HRBs, other relevant building control authorities (e.g. local authorities) will also be empowered to apply the new enforcement powers and tools.

  1. What are the enforcement methods which may be used by the enforcement authority?

The BSR states that it believes in firm and fair enforcement of the law, where enforcement actions taken by it and local building control authorities should be proportionate to the risks, level of non-compliance and seriousness of any breach of law.

Accordingly, enforcement authorities have a range of methods available to them to secure compliance with the law and ensure a proportionate response to any breaches. These include:

  • following inspection or investigation, providing:
    • written information regarding breaches of law; and/or
    • verbal warnings;
  • requiring improvements in the way risks are controlled and managed;
  • requiring action to be taken to remedy non-compliance;
  • stopping certain activities where they create serious risks or where they do not comply with relevant requirements; and
  • recommending and bringing prosecutions where there has been a serious breach of law.

Where a contravention is sufficiently serious, the BSA also empowers building control authorities to issue enforcement notices (see section 4 below), prosecute, or do both.

  1. Enforcement notices, ‘Compliance notices’, ‘Stop notices’ and ‘S36 notices’ – what are they and how do they work?

The BSA allows the relevant building control authority to issue the following enforcement notices:

  • compliance notice requiring non-compliant work to be remedied within a specified period;
  • ‘stop notice‘ requiring that works be stopped because the work would contravene building regulations or does contravene building regulations and there is serious risk of harm; and/or
  • ‘S36 notice‘ requiring alteration or removal of offending work where building work contravenes a provision of the building regulation,

Contravening the notices without a reasonable excuse (for a compliance notice) or without proving that all reasonable precaution and due diligence were taken to avoid the contravention (for a stop notice), will attract the penalties set out in section 5 below.

Those involved in the construction phase should be aware that these notices apply to non-compliance with all building regulations.

  1. What are the offences and liabilities under the BSA?

In addition to the enforcement tools introduced and/or enhanced by the BSA, the BSA also allows prosecution of offences under it and significant liabilities are attached to such offences:

Importantly, time-limits for enforcement are also  increased by the BSA. Prior to the BSA the relevant period to take an enforcement action (e.g. giving notice requiring removal or alteration of non-compliant work) was 12 months. This is now increased significantly to ten years from the date of completion of the works in question as per S36(4) of the BA.

In addition, if there is a contravention of building regulations (e.g. BA, S35), there is no longer a time limit for prosecution.

  1. How will the enforcement authorities approach enforcement?

Evident from the EPS is that enforcement will be targeted towards those who are responsible for, and best placed to, control risks and ensure compliance (e.g. clients, designers and, contractors). If appropriate, more than one dutyholder may be held responsible for a contravention.

The BSR outlined that all enforcement actions will be taken proportionately to the risk with five overarching principles in mind:

  • Proportionality in applying the law and securing compliance;
  • Targeting enforcement action;
  • Consistency in enforcement actions;
  • Transparency about how the BSR operates and what can be expected; and
  • Accountability for its actions.

Enforcement authorities will exercise discretion in commencing enforcement actions, having regard to the level of non-compliance, seriousness of the breach, attitude and competence of management, incident history, previous enforcement action and functional impact of the action being considered, amongst others.

Therefore, we can expect that the building control authorities approach to enforcement will focus on offences with serious actual or potential harm or which may give rise to significant risk, and probably offenders with repeated breaches. However, it is important to note that a sliding scale of tools (as outlined in sections 3 and 4) will be employed to address any actual or potential contravention of building regulations, proportionate to the risk and harm.

  1. Can individuals be personally liable for contraventions of the BSA?

Yes, individuals complicit in breaches may now be found liable for such contraventions in addition to a body corporate.

Under S112A of the BA (as amended by S40 of the BSA), where an offence is committed by a body corporate, individuals within that organisation (e.g. directors, managers, secretary and similar officers) may also be prosecuted for an offence where the breach was committed with their consent or connivance or as a result of their neglect.

The EPS outlines that enforcement authorities will consider management arrangements and the role played by individual directors and managers in relation to an offence.

Therefore, individuals cannot hide behind the corporate veil and must be aware that they can be held responsible for their actions or inactions.

  1. Conclusion: What does this mean for those involved in the construction phase?

The enforcement regime introduced by the BSA is designed to have “real teeth, so that it can drive the right behaviours” with the aim to secure the safety of people in and around buildings and to improve building standards.

It is intended to act as a deterrent for all involved in the construction phase, whether clients, designers or contractors, body corporate or individuals, to ensure greater compliance with building safety requirements during the in-construction phase. A stronger enforcement regime is just one facet of the changes introduced by the BSA to drive a cultural change in  the construction sector more generally.

Therefore, it is crucial that all involved in the construction phase, at both an organisational and individual level, are aware of their obligations under the BSA and comply with such obligations.