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11 August 2020

Assessing the draft Building Safety Bill

The Government’s draft Building Safety Bill represents the most radical legislative reform to building safety in decades, providing for greater accountability, a new stricter regime for high rise buildings and a new Building Safety Regulator amongst a range of other changes to the laws surrounding the planning, construction and management of buildings.

Following on from our initial post on the draft legislation, in this article we will examine some of the key tenets of the  Bill, which implements many of the proposals set out by the Government in April and will be of interest to all those involved in the development, design, construction, ownership and management of the built environment.

Context of the Bill

Everyone working in the built-environment sector in the UK will be aware of the tragic policy background to the Building Safety Bill, following in the wake of the Grenfell disaster. Taken together with various accompanying measures relating to building safety - such as the Fire Safety Bill currently passing through Parliament, various changes to the Building Regulations and the establishment of two significant funds for the replacement of both ACM and Non-ACM cladding, worth £1.6bn - there is no doubt that the measures comprise the most wide-ranging reforms in building safety for 40 years.

Although first announced in January, the proposals for a reformed building safety system were originally set out by the Government in April 2020 in its published response to the Building a Safer Future consultation, to which Charles Russell Speechlys was one of around 900 respondents.  

The consultation came in the wake of Dame Judith Hackitt’s high profile Independent Review of Building Regulations and Fire Safety, which notably described the regulatory system covering high-rise and complex buildings as “not fit for purpose” and had called for a “radical overhaul to futureproof the system”. Dame Hackitt’s Independent Review made 53 recommendations for a more effective regulatory and accountability framework for the building industry, which have all been accepted by the Government and many of which are consequently reflected in the Bill.

The Building Safety Regulator

Underpinning the various legislative changes set out in the draft Bill is the establishment of a new Building Safety Regulator (BSR). Part 2 of the draft Bill sets out the functions of the BSR which will operate within the Health and Safety Executive.

The BSR will undertake various regulatory functions, applicable to all buildings, with a view to improving the safety of people in and about buildings and improving the standard of the buildings themselves, as well as the competence of all those that work in the built environment industry.  

Under section 29, a person found to have provided false or misleading information to the BSR may be guilty of a criminal offence and liable for a fine or up to two years in prison on indictment.

Oversight of professions

Under section 6 of the draft Bill, the BSR has a duty to provide assistance and encouragement to all people involved in the built environment industry with a view to facilitating and improving their competence. To this end, section 10 of the draft Bill provides for a Committee on industry competence to be set up within the BSR to monitor and advise the built environment industry.

The legislation also introduces a new role of ‘building control approvers’, replacing the role of Approved Inspectors.  The BSR will directly oversee their competence and performance, and ‘building control approvers’ will have to apply to join a national register, maintained by the BSR.

The implementation of a regulatory body falling under the HSE for ‘building control approvers’ is likely to be welcomed by all involved in the building industry. It is hoped that greater regulatory oversight may encourage professional indemnity insurers back into the market for such organisations, many of whom, following Grenfell and recent changes to insurance regulations, simply stopped offering insurance to Approved Inspectors, no doubt contributing to the rapid decline in organisations offering Approved Inspector services.

Section 111 of the draft Bill amends the Architect’s Act 1997 and would allow the Architect’s Registration Board (ARB) to bar the entry or re-entry of Architects onto the Register if they are deemed to not to have reached a sufficient competency threshold on matters such as fire safety, as will be left to the ARB to assess. This reflects a key recommendation of the Hackitt Report that levels of competence required for those building higher-risk buildings should be maintained and subject to continuing development, continuing education or meaningful professional development.

Commenting on the proposals, Tom Rhys Jones of Jefferson Sheard Architects notes: “Setting high competency thresholds can never be a bad thing. Widening the competency requirements to include all the key parties within the collaborative team required to design and construct a complex project is overdue. It is not logical that Architects should be the only statutorily regulated of these parties – the others obviously play a huge part in the creation of safe and otherwise successful buildings. Appropriate professional regulation should be seen as an opportunity for the industry to demonstrate its often under-appreciated upside”.

In addition to the committee on industry competence, the Bill also provides for the establishment of two further committees: a Building Advisory Committee and a Residents’ panel.

The Building Advisory Committee, established under section 9 of the Bill, will be set up to provide advice and information to the Building Safety Regulator to assist it with exercising its statutory functions. The Explanatory Notes to the Bill provide examples of how the Building Advisory Committee could work in conjunction with the BSR. Taking one example, if the BSR identifies an emerging issue relating to the safety of buildings which requires consideration and potentially some form of action, the Building Advisory Committee would investigate the issue and provide the BSR with the necessary expert advice on how to proceed.     

The establishment of the Resident’s panel is intended to address the Hackitt Report’s finding that there was a need to rebuild public trust by creating a system where residents feel informed and included in discussions on safety. The BSR would be obliged to consult the Resident’s panel before issuing or revising guidance relating to the new stricter regime for higher-risk buildings.    

A new stricter regime for ‘higher-risk buildings’

Under the draft Bill the BSR will be responsible for implementing and enforcing a new stricter regime for ‘higher-risk buildings’ and for making key regulatory decisions at points during the design, construction, occupation and refurbishment of buildings, under the new ‘Gateway’ system.

Determining the parameters for which buildings will be deemed a ‘higher-risk building’, and thus fit within scope of the new stricter regime, will fall to the Secretary of State, who must consult the BSR.  It is currently understood that it will apply to all buildings of 18 metres or more in height, or more than six storeys. The exact parameters of which buildings should be deemed to fall within the stricter regime is likely to be an aspect that will receive considerable scrutiny as the Bill passes through parliament. The BSF consultation had contemplated that the construction of hospitals and prisons could fall within ‘higher-risk buildings’ due to the high levels of occupancy in such buildings.

A new dutyholder regime

The specifics of how many of the new measures, such as the new dutyholder regime, will function in practice are not contained in the draft Bill itself but will be set out in secondary legislation. Nevertheless, the key tenets of the new dutyholder regime can be derived from the Government’s Explanatory Notes to the draft Bill, as well as its previous announcements on these issues.

Arguably the most important finding of the Hackitt Report was that the roles and responsibilities for ensuring building work meets the requirements of the Building Regulations were unclear, leading to a lack of accountability in the current system. Under the new system, dutyholders will have clear accountability and statutory responsibilities for managing risks at each stage of the design, construction and occupation of a building. The five duty-holders during the design and construction phase mirror those under the CDM Regulations and constitute the Client, Principal Designer, Principal Contractor, any Designer (to include anyone or prepares or modifies a design) and any Contractor (to include anyone who manages or controls construction work).

The Explanatory Notes confirm that dutyholder roles may be fulfilled by either an individual or an organisation and a dutyholder can hold more than one role in a building project.

The Accountable Person

Following construction, Section 61 of the draft Bill designates who would be the ‘Accountable Person’, the dutyholder in occupation for buildings which fall within scope of the new regime for ‘higher-risk’ buildings. The Accountable Person would be deemed to have responsibility for meeting various statutory obligations relating to building safety and engagement with residents.

Under section 61 (1) this may include either:

(a) a person who holds a legal estate in possession of any part of the common parts of a building; or

(b) a person who is under a relevant repairing obligation in relation to any part of the common parts.

This would generally be the freehold owner of the property, though management bodies may also be defined as Accountable Persons in circumstances where the lease sets out repair and maintenance obligations for that body.  Where the Accountable Person is an organisation, it has been suggested that an individual board member must take on responsibility for fulfilling the obligations of an accountable person.

One of the many obligations of the Accountable Person is to appoint a Building Safety Manager for the building. The Building Safety Manager can be an organisation or an individual, but where it is an organisation, under section 70 the organisation must nominate an individual acting under its control and the individual must have the appropriate skills, knowledge, experience and behaviours to manage their functions. In essence the Building Safety Manager is the person on the ground with responsibility for ensuring that the building is managed safely and that key statutory obligations are discharged on behalf of the Accountable Person.

The Bill also includes various provisions relating to Dame Hackitt’s proposals for a ‘golden thread’ of digitally stored data relating to Building Safety, which must be updated and made accessible to the BSR (as well as to residents) throughout the lifecycle of the building. The Building Safety Manager is to be responsible for updating this golden thread, during the occupation phase, inspecting how residents are using the building and assessing the suitability of the safety measures in place.

Overall, in clarifying the lines of responsibility for building safety the proposals for a new dutyholder/accountable person regime are likely to be widely welcomed. Nevertheless, as much of the detail regarding the new regime will be set out in secondary legislation it is not clear how the Government envisions many aspects working in practice.

The Three Gateways

A key aspect of the new regime for higher-risk buildings is the concept of ‘Gateway’ points to allow rigorous inspection of regulatory requirements in order to help ensure building safety risks are actively considered and managed throughout the planning, design and construction phases of a project.

In part to allow for the establishment of the Gateway concept, Part 3 of the Bill contains various amendments to the Building Act 1984. Section 37 of the Bill provides powers (under new paragraphs of Schedule 1 to the Building Act 1984) for the Gateway requirements to be set out in building regulations and the Explanatory Notes to the Bill summarise a three-step Gateway regime as follows:

Planning Gateway One

The first Gateway concerns the planning permission process and occurs before dutyholders are required to be in place. Under Gateway One the BSR would examine all planning applications deemed to fall under the scope of the regime for higher risk buildings and would provide specialist fire safety input to assist the Local Planning Authority in their decision making process.

Gateway Two

Gateway Two will need to be passed prior to the commencement of construction and this stage provides a ‘hard stop’ where construction is not able to commence until the BSR is satisfied that the design of the dutyholder meets the building regulations and sufficiently manages safety risks.

The Government’s April 2020 consultation document stated that it may be “preferable to have a staged approach, where work could begin on some parts of the project before others”, for example if certain information required to pass Gateway two on a complex build remains outstanding. This does not appear to be accounted for in the draft Bill however and consequently in future building contracts parties will need to think very carefully regarding who will bear the risks if such approval from the BSR is not forthcoming. In its response to the BSF consultation Charles Russell Speechlys noted the difficulties with the ‘hard stop’ and its potential to severely affect the fundamentals of the construction procurement process. Any delay could be costly and could have serious implications for projects, leading to avoidable disputes. 

If the hard stop approach is to be adopted, careful consideration will be required as to which party is best placed to manage this risk under the construction contract.

As set out in section 42 of the Bill, under a new clause 35C of the Building Act 1984, during construction the BSR would still have the power to issue a “Stop notice” for non-compliance with building regulations, prohibiting, either immediately or within a specified period of time, the carrying out of any specified work until such time as the necessary remedial work / activities have been undertaken. Failure to respond to a Stop notice would be criminal offence and anyone found to have breached it may be liable for a fine or up to two years in prison on indictment.

As part of the Gateway two application, the Client would have to provide a signed declaration that they are content with the skills, knowledge, experience and behaviours of the Principal Designer and Principal Contractor, along with evidence of the Client’s assessment process for determining such.

Gateway Three

Gateway Three constitutes the final assessment stage before occupation of a building is permitted and is the point at which all documents and information which form part of the Dame Hackitt’s ‘golden thread’ must be handed over to the Accountable Person.

All dutyholders will be required to submit to the BSR the relevant prescribed documents and all information on the final, as-built building as the BSR will determine. Only when the BSR is satisfied will it submit a completion certificate to allow the building to be occupied.

Conclusion

Upon publishing the draft Bill the Government was keen to stress that it will be receptive to the views of all concerned in the built environment industry, as well as residents, before it is introduced to Parliament.

Nonetheless, the majority of the measures, particularly those which clarify accountability, are likely to be widely welcomed.

We will keep a close eye on developments once the Bill is put before Parliament and as it progresses into legislation.


This article was written by Michael O'Connor and Ben Wilkins, please contact Michael at Michael.O'Connor@crsblaw.com or Ben at Ben.Wilkins@crsblaw.com for more information on the Bill or Building Safety. 

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