Building and fire safety – Establishing gateways and the golden thread
In June 2019 the government issued its extensive consultation, Building a safer future: proposals for reform of the building safety regulatory system. It sought views on what it described as “proposals for a radically new building and fire safety system”. The new regime will overhaul the existing safety system for multi-household residential buildings over 6 storeys (18 metres) in height. It may also be extended to include other buildings, such as hospital, prisons and care homes, over time. As many of the proposals will have a significant effect on the design, construction, management and occupation of a building from planning stage and throughout its life cycle, we have submitted a response to the consultation.
The consultation builds on recommendations from the Hackitt report and follows closely on the heels of the Government’s announcement in May of a £200M fund available to building owners to replace unsafe ACM cladding from certain high rise residential buildings. In addition, changes to the Landlord and Tenant Act 1985 in March confirm existing obligations of all landlords to ensure that all parts of a domestic tenanted property, including common areas, are fit for habitation. There have also been changes to the Building Regulations in terms of fire safety and a review of the Fire Safety Order, which regulates fire safety in non-domestic premises, is underway.
Key dutyholders and the ‘accountable person in occupation’
The proposals include the establishment of five ‘dutyholders’ (client, principal designer, principal contractor, designer and contractor), mirroring the roles under the CDM Regulations, who have clear responsibilities throughout a building’s design, construction and occupation. Consideration is being given to whether a single accountable person at Board level should have responsibility where the dutyholder is a legal entity. There is also considerably increased focus on long term maintenance and management of buildings post-construction by an ‘accountable person’ who is responsible for ongoing fire and structural safety risk and liaising with residents. A new building safety regulator will be established to provide oversight of the building safety regulatory regime.
Gateways and the golden thread
Three Gateways are proposed during the planning, design and construction phases of a building with dutyholders working co-operatively and discharging their specific duties to ensure that the regulatory requirements of the gateway points are met at each stage. The first Gateway focuses on the planning permission process, Gateway two must be achieved before construction begins and the final Gateway must be met before occupation of the building. A similar process will apply to major refurbishments of buildings or a change from commercial to residential use.
Clients must, among other things, create and maintain a complete ‘golden thread’ of information and key data, to be stored digitally. The other dutyholders, in particular Principal Designers and Principal Contractors, must assist the Client in meeting the Gateway points and contribute to the golden thread of information. The golden thread must be updated and remain accurate throughout the building’s life cycle.
Longer term liability
The ability to maintain and manage a building in accordance with the new regime, as well as initial design, will now be key construction risks. Designers, engineers and contractors responsible for fire safety and the structural integrity of the building will have greater and longer term liability. Not only will they be exposed to the usual contractual and tortious liabilities, but specific legislative penalties and criminal offences will be imposed. As we have already seen, this will drive up insurance premiums and potentially reduce the availability of required insurance in the market place. Questions are likely to arise as to the design life of a building and its components and funders of development projects may demand increased security for longer periods.
Our responses to the consultation
We provided responses to numerous key issues raised in the consultation document, including:
- Generally speaking, the use of existing roles under the CDM Regulations for the five proposed dutyholders under the new regime is likely to be an effective way to establish and manage dutyholder responsibilities. The roles under the CDM Regulations are generally understood and well-established in the construction industry. However, the definitions are not exclusive and may not match those which the proposed regime contemplates. For example, a ‘Client’ may also be a ‘Contractor’ and a ‘Designer’. This should be mirrored or clarified in the proposed regime.
- There may be instances where a role under the CDM Regulations, for example where a construction manager or management contractor acts for the client, is adopted on a relatively short term basis and is not intended to continue through the Gateways and to sustain the golden thread of information that the new regime contemplates. It may be that there are multiple points of handover to the ultimately “accountable person in occupation”. This could be unwieldy and difficult to manage.
- It is proposed that there should be a ‘hard stop’ at Gateway two where construction cannot begin without permission to proceed. We do not agree, as this would severely disrupt the fundamentals of the construction procurement process. Although there are stages to project procurement and the design and construction process, the stages are fluid and progress in different ways and at different times on a project by project basis. Letters of intent and pre-construction services agreements (PCSAs) are regularly entered into for some or parts of the works such that projects can proceed as efficiently and quickly as possible. Any delay comes at a cost, often significant, and the potential for a ‘hard stop’ to suspend works for what may be a considerable amount of time would effectively cripple a project and is likely to lead to unnecessary disputes and the renegotiation of contract terms.
- Similarly, it is proposed that the building safety regulator should be able to prohibit building work from progressing unless non-compliant work is first remedied. By not allowing any building work to continue, there could be serious time and cost consequences for a project and there is the potential that the non-compliant work could be relatively minor. An alternative would be to take note of the non-compliant work and require it to be remedied before Gateway three can be passed. This would enable the parties to continue to carry out other construction works, whilst also providing the regulator with the authority to prevent occupation until the non-compliant work has been remedied.
- A gateways process is proposed for major refurbishment projects. Such projects can be significant and impact upon the fire safety integrity of buildings. However, not all refurbishments will have an impact. The new regulations should identify what constitutes a “qualifying” refurbishment project and be defined by the type of work being carried out.
- It is proposed that Building Information Modelling (BIM) standards will be mandated for both new and existing buildings under the new regime. We have suggested that BIM standards should apply to new buildings in the planning stage only. Projects may have already commenced and to mandate the use of BIM may be unreasonable in circumstances where the available documentation may not be available or difficult and costly to locate. We also propose that certain key information, for example in relation to structural integrity and fire stopping, should not be open and publicly available where this could compromise the safety of buildings.
- The ‘accountable person’ has considerable duties throughout the building’s lifecycle, including the recording of refurbishment works and structural changes over time. It is unclear how works carried out by individual residents will impact on this. It is proposed that residents co-operate with the accountable person. However, it is not clear what this requires. Residents should have clearly described responsibilities so as not to hinder or compromise the obligations of the accountable person. Penalties for residents who fail to comply should be considered.
- The proposal in the Consultation is for an accountable person which may include an individual, partnership or corporate body. For a corporate body, it is proposed that there be a single accountable person at Board level. This may cause difficulties both for private landlords and resident owned management companies as the accountable person has high level duties and responsibilities and it may be difficult to identify and obtain consent from a person at Board level to fulfil this role. In a resident owned management company, this may have the potential to discourage residents from joining the Board of Directors.
- We do not agree that the accountable person requirement should be introduced for existing residential buildings at this stage, even if, as is proposed, there will be a transitional period. For existing buildings, it is often more difficult to establish the history of the building, its structural composition and the current fire safety risks. Under the proposed regime, the responsible person would remain obliged to identify fire safety risks and take appropriate steps to deal with the risks identified. However, it could be extremely onerous and expensive for all of those involved, including the owner, landlord, occupiers and leasehold owners to implement the safety regime, including the accountable person requirement.
Hopefully, the government’s report following this consultation will address some existing concerns and clarify certain issues. It is unclear where the increased cost of regulating compliance with the new regime will ultimately lie. It is likely to be spread across the construction industry to some extent, although long term costs during the occupation phase of the building will fall to be negotiated between owners, landlords, leaseholders and residents.
News & Insights
Common issues with termination of construction contracts
Taking a look at different ways of contractual termination as the consequence of the COVID-19 pandemic.
Construction and Development in the COVID-19 Era: Lessons Learned and How to Use them
Our recent webinar focusing on how challenges can become opportunities, particularly relevant as England has now entered another lockdown.
Omitting works from an NEC contract: Valuation under the contractual mechanism
Taking a look at the potential dangers of varying the scope of works and how such variations may be assessed under a construction contract.