Government sets out proposals for new building safety measures to implement the Hackitt Report

On 2 April 2020, the UK Government published a raft of proposals for a reformed building safety regulatory system in its response to the Building a Safer Future consultation (Response), which ran from 6 June 2019 to 31 July 2019.

The measures proposed by the Government will be set out in further detail in the yet to be published  Building Safety Bill, but the Response gives a clear indication as to what we can expect in the Bill and will be of interest to all involved in the development, design, construction, ownership and management of buildings.

The Government estimates that the total cost of the package of proposed measures in the Response will be between £266m - £530m per annum and the more stringent regulatory regime for multi-occupied residential buildings of 18 metres or more will have the effect of increasing construction costs by £120,000-240,000 per building. The majority of the construction costs incurred in complying with the new regime are expected to be borne by building developers. Nevertheless, the Government also estimates that introducing the measures will result in economic benefits of between £190m - £380m, in part through the savings gained from the overall package of additional checking and information-gathering reducing defects both during and at the end of the construction period.

Implementing the Hackitt Report

The Government’s extensive consultation document, Proposals for Reform of the Building Safety Regulatory System, to which Charles Russell Speechlys was one of around 900 respondents, came in the wake of Dame Judith Hackitt’s high profile Independent Review of Building Regulations and Fire Safety: Final Report (the Hackitt Report). Dame Hackitt had initially set out how the regulatory system covering high-rise buildings was “not fit for purpose” and the Hackitt Report set out numerous recommendations for improvement.

The Response accepts all of the 53 recommendations set out in the Hackitt Report and states that, in certain instances, the measures go even further than those proposed.

Key Proposals

New Regulatory Regime and the Building Safety Regulator

A new stricter regulatory regime will apply to all multi-occupied residential buildings (existing and new build) of 18 metres or more in height or more than six storeys. In terms of existing buildings, details of a transitional period for compliance are due to be published later in the year.

To oversee the new regulations a national Building Safety Regulator will be established as part of the Health and Safety Executive and administer a national register of buildings that fall within the stricter regime. The Building Safety Regulator will be responsible for all major regulatory decisions made at key points during the design, construction, occupation and refurbishment of buildings, in accordance with the new regime.

The Building Safety Regulator will also oversee and enforce (including through criminal sanctions) the safety and performance of all buildings and be responsible for oversight of the competence and performance of building control professionals and the building control bodies in which they work.

System of Duty Holders

Under the Government’s proposals there will be a new system of duty-holders with clear responsibilities at each stage of a building’s lifecycle, designed to provide more accountability to end-users. The five duty-holders during the design and construction phase mirror those under the CDM Regulations 2015 - the Client, Principal Designer, Principal Contractor, any Designer (including anyone who prepares or modifies a design) and any Contractor (including anyone who manages or controls construction work).

The Three Gateways

During the planning, design and construction phases, new builds subject to the stricter regime will need to pass through three Gateways, during which they will be assessed by the Building Safety Regulator. The information submitted during progression through all three Gateways will form part of the ‘golden thread’ of digitally stored data, which will be updated and made accessible throughout the lifecycle of the building.

Gateway one will have to be passed before planning permission has been granted and will focus on fire safety issues, such as emergency fire vehicle access and whether there are adequate water supplies available in the event of a fire.

The intention is for Gateway two to be passed prior to the commencement of construction. However, the Building Safety Regulator will be allowed to permit a staged approach to construction to prevent delay on a project (e.g. by permitting foundation works) if certain information required to pass Gateway two on a complex build remains outstanding.

At Gateway two, the Client will be required to submit various information to the Building Safety Regulator in order to demonstrate how the building meets applicable regulations and sufficiently manages safety risks. The Building Safety Regulator may seek further information from the Client or reject an application to progress through Gateway two outright. As a result, the Government states that Gateway two will be a ‘hard stop’ before the Building Safety Regulator gives permission for construction to begin although, as noted above, a staged approach may be permitted. It will be interesting to see the detail as to how they envisage the staged approach to work when the legislation is published.

During construction the Building Safety Regulator will still have the power to issue ‘stop’ and ‘improvement’ notices as construction works progress. Failure to respond to an improvement notice may lead to the regulator issuing a stop notice which would require some or all work on site to cease.

Gateway three will have to be passed before occupation of the building is permitted, although the current proposals state that the Building Safety Regulator will be allowed to permit partial occupation before the building is completed. At Gateway three the Client will be required to submit various information on the final, as-built building (including updated, as-built plans). The Client, Principal Designer and Principal Contractor will be required to produce and sign a final declaration confirming that to the best of their knowledge the building complies with the building regulations.

The Accountable Person and Building Safety Manager

Once Gateway three is passed, a new duty-holder for the occupation phase, the ‘Accountable Person’, will be responsible for taking the appropriate steps and actions to mitigate and manage the fire and structural risks in their buildings.

The Accountable Person will be the individual, partnership or corporate body with the legal right to receive funds through service charges or rent from leaseholders and tenants in the building. Any person or company may find itself designated an Accountable Person if they subsequently take ownership of the property. As a result, identifying the Accountable Person could be quite complex given some of the ownership structures of buildings caught by the new regime, though the Response states that the Government will provide comprehensive guidance in due course.

The Accountable Person will be responsible for appointing a Building Safety Manager and ensuring the Manager has the resources necessary to report on and manage various aspects of a building’s safety, including engaging with residents on the safe management of their buildings through the implementation of a Resident Engagement Strategy, which will be reviewed by the Building Safety Regulator.

As with the construction phase, the Building Safety Regulator will have the power to issue a ‘compliance’ notice which will require remedial action to be taken. The Response states that the breach of any of ‘compliance’, ‘stop’ or ‘improvement’ notice will be a criminal offence under the proposals, although gives no guidance at this stage as to what the ‘penalties’ may be for a breach.

Existing buildings under the new regime

Existing multi-occupied residential buildings above 18m or six storeys in height will fall under the new more stringent regulatory regime and the Accountable Person will be required to obtain a Building Registration Certificate at Gateway three in a similar way to that required for new builds. The Government will set out further details on how the transition period to the new regime is expected to work for existing buildings later in the year.

Going Forward

Prior to release of the Government’s Response, considerable progress had already been made in building and fire safety in the UK and it is notable that on the same day the new measures were announced, the latest non-ACM cladding testing results were released showing that none of the materials tested (including high pressure laminate (HPL), timber, zinc, copper and aluminium honeycomb cladding) behaved in the same manner as ACM.

If enacted, the current proposals will clarify and in all likelihood increase the liability for designers, engineers and contractors responsible for ensuring the fire safety and structural integrity of a building. Nonetheless, the majority of the measures, particularly the new system of duty-holders, are likely to be widely welcomed in the construction industry.

We will keep a close eye on developments following the publication of the Bill and its progression through Parliament.

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This article was written by Ben Wilkins at Charles Russell Speechlys. For more information, please contact Ben on +44 (0)20 7438 2216 or at ben.wilkins@crsblaw.com.