Ian Quayle recently engaged in a discussion with Andrew Butler KC from Tanfield Chambers. This captivating conversation was showcased on the Case Chasers podcast by Property Law UK. They explored The BSA in anticipation of the release of ‘Building Safety Act 2022: A guide for property lawyers’ from The Law Society, a publication for which Ian and Andrew served as general editors. Below is the transcript of their enlightening dialogue. 

Ian Quayle (IQ): Hello everyone and welcome to this podcast, my name’s Ian Quayle from IQ Legal Training and what we are going to be doing today is exploring some issues regarding the Building Safety Act and I have a great announcement in connection with the book published by The Law Society. 

I have been working with Andrew Butler KC from Tanfield Chambers for over a year now. Hi Andrew, good to hear from you again, hope you are fit and well, and it is good to see you. 

Andrew Butler (ABKC) Yes, I am, thank you. 

(IQ) Andrew, I was just thinking there that we have been on quite a journey with regard to the Building Safety Act and talking of journeys, the first time, I think that you spent a lot of time looking at the Building Safety Act was on a journey. Do you remember where you were going and what you were doing? 

(ABKC) Yes, I do indeed, Ian. I was just reflecting on this the other day because it’s been quite a year and it was actually just under a year ago, about 11 months ago, I had a long-haul flight with a bit of time and I passed that time by actually starting to read into the Building Safety Act, which probably didn’t make me wildly entertaining company, but it was a good opportunity just to start familiarising myself with the provisions and it’s really amazing to think how much has happened since then. It is astonishing to think that was just eleven months ago and how far we have come during that time. 

(IQ) Absolutely, and the interesting thing about it isn’t it, that the more you delve into the act, the more complicated, the more interesting I think is trying to put a positive spin on things, it becomes, because I remember you and I discussing your first couple of readings and then thereafter it has become, I don’t know whether it’s a labour of love or not, but the more you delve into it, boy, does it get complex. 

(ABKC) Yes, I think that is right. I mean my first focus at your encouragement was Part 5 and Schedule 8 and that was really quite unlike any piece of legislation I’ve come across before, just because of the intricacy. And you are right that it required, well, two or three readings to start to get my head around it, and every time I went through it, for the first few times, I picked up on different things. It is a very complex mosaic of legislation and of course, we are still at the stage where we do not really know how it is going to work through in practice. Decisions really are only starting to be published now and the rest is speculation. 

(IQ) Yes and the other thing about that Andrew is of course it has huge implications for transactional property lawyers who want clarity and want to be able to say to clients it is safe to proceed with this leasehold property, or it is that there are issues. When you’ve got that complexity in what is a relatively small part of the Act, it becomes a nightmare, and then I don’t know what you think, but like you, I focused in on that to start with, but then when you start looking at other sections of the Act and you think about construction and you start thinking about the Building Act and the reform of the Building Act and the reform of the Landlord and Tenant Act 1985 and higher-risk buildings, there’s probably a lifetime of research and work to be done on each one of those topics, never mind what we originally started looking at which is how does this impact on conveyances. 

(ABKC) Yes, absolutely, and if only you and I were at the start of our careers… we will not have time to get to the bottom of it at all. I think that right, and I certainly remember, when you brought my attention to this, you did so in the context of real problems that you were encountering with your clients and colleagues in the world of conveyancing. I think it is fair to say that a lot of people probably were not aware of what the Building Safety Act was doing, and a lot of people who were aware just did not understand the provisions and found them daunting and terrifying. A lot of what we started doing on this was about trying to provide some reassurance, trying to show conveyancers and others affected by it that it was workable and that a lot of it was about managing client’s expectations as to what could and could not realistically be done. So, I hope there are a few people who feel less phased by it now than possibly they did then. But I think we both know that the work is not done, there is still a lot of ignorance, a lot of uncertainty, and that that does not reflect terribly well on the Act, it must be said. 

(IQ) No, it doesn’t, and I remember all the time that we spent with regard to the Building Safety Act Flowcharts and you did all the heavy lifting on that with Annie Higgo, et cetera, but we tried to create a roadmap for conveyancers to say yes the Act is frightening, but here’s a pathway that will enable you to deal with some of the basics to enable you to do your work as a conveyancer and they have been really successful and a really useful tool for people. But the time that was spent attempting to simplify the Act for that purpose was quite extensive, wasn’t it? And again, I have to say you did the vast majority of the work and the heavy lifting on the Flowcharts and they have been really useful to try and show conveyancers well, look, subject to some caution, and subject to scoping the retainer and being careful, there is a route that can mean you can act on a sale or a purchase. 

(ABKC) Absolutely, and it’s very kind of you to give me that credit. I think what we both spotted was that the Act is full of these sorts of linear processes which are complicated, but much more straightforwardly depicted in visual form. And so, the aim of that was to try to break down those processes into simple manageable images that people could just have on their desktop and follow as they were trying to carry out these difficult exercises that the Act requires. I very much hope they have been successful. I think we have had some pretty good feedback, and it may be that as time goes by, we will start to think about producing some more. I mean, goodness knows enough things are being introduced even now, bits of the legislation coming into force, which may well call for a similar exercise to be done. 

(IQ) Yes, five sets of regulation, 400 pages of government guidance notes and God knows what else. The other thing that is really useful for me is remembering the Tanfield Chambers conference in 2023 and that we had all your colleagues and you explaining in great detail bits of the Act, and it was then I recall thinking that this is such a huge piece of legislation. And although I have been focusing on it from a conveyancing perspective, you and your colleagues were highlighting just how expansive it is from a litigation perspective too. So that was really interesting. 

And you had another event recently which I was kindly invited to, so thanks for that. 

(ABKC) No, that is fine, we enjoyed seeing you there. Yes, we have always had a spring property event, I think it was in May last year and I was tasked with organising it. Originally, we were going to have a miscellaneous, but it occurred to me that there was so much concern about The BSA at that time that in fact dedicating the day to that topic would possibly cause a lot of interest, and so it proved. We called it a day with the BSA, and even an entire day was not enough to do much more than scratch the surface. 

So, as you rightly say, we had another conference on 07 February 2024, BSA Day 2 – the sequel, and we covered some of the same subjects we covered before in a little more depth, and some new subjects. We had a fantastic turnout, which again is indicative of the level of interest in and concern about the Act. 

(IQ) Yes and for the first time, I met a number of your colleagues who you were able to call upon in connection with the book that The Law Society is in the process of publishing, which I am really excited about to be honest because it is a practitioner’s guide. It is again an attempt to decipher key Act features to make life easier for practitioners. So it was brilliant that at both of Tanfield’s conferences I met and heard from a number of the contributors who have worked with you and The Law Society to publish the book, which again is exciting because I have never been involved in anything like it before. To have people take a deep dive into various sections of the Act for the purposes of the production of the book has been brilliant, and of course, your being able to cast a supervisory eye on what is being done has been a massive help. Once again Andrew, I have to concede you do the heavy lifting, I sort of dilly and dally on the periphery and every now and again to try and, some would say cause mayhem, others would say perhaps assist. 

(AB) I think you are doing yourself down Ian and it is certainly true to say that none of this would have happened without you. I mean as far as the book is concerned, it is certainly true that the Building Safety Act fell neatly for the most part into Tanfield’s bread and butter. We have already got a publication on service charges, and I think we are recognised as being one of the leading sets of chambers in that area, and the Building Safety Act, of course, affects service charges, but it affects the world of real estate much more widely than that. My own practice is more on the commercial spectrum of property work, construction, and so on, so there was a lot in the Building Safety Act that we as a chambers felt we could contribute to. It felt like it was a topic that was right for a book and thanks to you we got the way in with the Law Society who were kind enough to commission us to write it. 

So the book which is due to come out shortly is a hybrid of the input of a lot of my colleagues who have, as you say, taken a deep dive into some of the more problematic subject areas of the Act, mainly in the world of real estate rather than the world of construction per se, and then your own invaluable contributions born of your training and your experience as a conveyancer, which dare I say may be a little more practical than those of learned council. But hopefully, the whole thing is going to address the day-to-day problems that practitioners are encountering, some of the problem areas. 

As I say in the foreword, it is quite a daunting thing, writing a book about an Act that is so new because there is so little learning on it, so few decisions that we are feeling our way to some extent, but I hope and expect that practitioners are going to find it useful to have a reference guide like this to follow. 

(IQ) Yes and it’s quite amazing given, I mean I forget how many months we have actually had to do it, but to get from zero to where we are I think is pretty impressive, particularly given the fact that the government keeps throwing in regulations every now and again just to keep us on our toes. I got an e-mail this week from you saying, hey everyone remember about the new regs which came out just the other week. So they keep throwing little surprises at us to keep us on our toes, don’t they? 

(ABKC) Yes well, we are at the proofing stage as you know, and I am going through my chapters and I see that when I wrote them, I said these regulations are not yet in force and lo and behold, now they are in force. So yes, things are changing the whole time, and yes, that too is possibly a challenge for the book. I mean, I dare say it will be taken over by events in due course, but it is a good framework of the law as it is now, and it will be our job then to keep it up to date for the second edition. 

(IQ) Yes, absolutely, and it is interesting, and people can pre-order the book via The Law Society website. So, Andrew, I’m really excited about where the book takes us, I am really excited also about the fact that there are further training opportunities and I would love to work with you again in connection with webinars et cetera, on feature development or feature changes or feature clarification on the law as and when we get First Tier Tribunal and Upper Tier Tribunal decisions. 

I think in addition to that, given the regulations, given the fact that practitioners are working more and more with transactions that involve the Act, that there is plenty of opportunity to spend more time looking at the Act, looking at how it changes and how its evolution means that practitioners need to be kept aware of what those changes are and what that evolution actually means. 

(ABKC) I completely agree, I mean we are very much at the beginning of this journey. The Act is so radical, and the process of its introduction is so incremental that the landscape is going to change a great deal and I think people in the world of real estate are still getting their heads around the implications. I do not think it has been fully absorbed and understood even now. So, we are definitely at the start of a journey, but it is great to have gotten, I think I am right in saying, the first book out there that brings together these disparate and complicated elements and provides practitioners with a go-to work which hopefully will address quite a lot of the problems. 

(IQ) Yes and certainly from the government’s perspective, from what I hear, there are no plans or intentions on repealing the Act, it is what it is, we must live with it and work with it. The only thing I keep thinking Andrew is every time I see a new set of regulations, I am thinking to myself, I wonder if Andrew’s got any long-haul flights so he can sit down and look at that while he’s flying at 35,000 feet, and come back to me on the future of the Act. 

(ABKC) Sadly, no exotic foreign holidays planned in, or at least none far afield, so it will be short haul at best for me in the future. So, I will probably just have to limit myself to a couple of sections or maybe the odd schedule. 

(IQ) Yes, Andrew, it has been a delight talking to you again, a delight working with you, and I look forward to maintaining that relationship and with your colleagues at Tanfield Chambers. Again, as a plug for Tanfield Chambers, you and your colleagues have to be the go-to set for BSA-related issues, be it advice in connection with transactional work or, and I’m sure this is going to happen, the flow of litigation that goes before lower tribunal, upper tribunal, relating to aspects of the legislation. At least all your colleagues are primed in connection with parts of the Act and able to assist practitioners be they property litigators, conveyancers, or transactional property lawyers. 

(ABKC) Yes, thank you, Ian, that is where we hope to position ourselves, and I think we have done okay so far, and the Tanfield conferences further bolster our credentials. If I can just add to that a plug for the hub on our website, there is a dedicated section given over to The Building Safety Act where we are putting decisions, articles, and thought pieces. I know a lot of practitioners who have come across it and have found that very useful. So, if I can use this as an opportunity to plug that, and it would be wrong not to say thank you for encouraging us to focus our attention on this piece of legislation. I mean it came from your awareness of the difficulties that it was causing, and if we have helped to clarify the Act for some of those people that have been really troubled by it, then I am very pleased. 

(IQ) No doubt about that at all. Thanks again, Andrew, lovely to talk to you, we will speak soon.