Construction Update on Building Safety and the Golden Thread
We previously wrote here on the golden thread and what steps the construction industry could be taking now in order to address issues with high risk buildings that will likely arise once the Draft Building Safety Bill 2021 (Bill) receives royal assent.
Since that article, the government released the latest version of the Bill, including their updated explanatory notes on the Bill, on 5 July 2021. The government also issued a press release on the same day setting out their comments on the new measures introduced by the Bill.
When will the Bill come into effect?
The government released their transition plan and their timeline for the same on 5 July 2021. The timeline notes that the Bill is expected to receive royal assent 9 to 12 months after introduction, so in summer 2022. There will then be a period of time for relevant provisions, as summarised within the transition plan, to come into force (between 2 to 18 months after royal assent).
What Buildings are in Scope?
The Secretary of State released draft regulations on what is currently intended to be meant by a ‘higher risk building’ (HRB) in the Bill as follows:
- HRB’s (new or converted buildings) are those that are over 18m or 7 storeys and contain at least two residential buildings or is a care home, or is a hospital; and
- HRB’s (existing buildings) are those that are over 18m or 7 storeys and contain at least two residential buildings.
Updates on the Golden Thread
Further detail on what is required within the ‘golden thread’ can be found in the Building Regulations Advisory Committee’s report on the golden thread dated 21 July 2021 (BRAC Report) that sets out the overall policy, plans, and strategy for the golden thread.
The BRAC Report states that the golden thread is both:
- the information about a building that allows someone to understand a building and keep it safe; and
- the information management to ensure the information is accurate, easily understandable, can be accessed by those who need it and is up to date.
The BRAC Report also sets out that there will be ‘Golden Thread Regulations’ introduced that will set out the obligations that the dutyholders or accountable persons must follow in maintaining and storing their digital golden thread of information. The regulations will also define the information, data and documents that should be stored in the golden thread.
New or Converted HRB’s
New or converted HRB’s will need to pass through three separate ‘gateways’ (stop / go decision points). The Building Safety Regulator will review the ‘golden thread’ at each of these gateways to assess the adequacy of the information being stored in respect of the relevant HRB. We note that:
- The first planning gateway came into effect on 1 August 2021 as noted here and referred to in our previous article here. The HRB’s currently in scope for the current planning gateway are those that contain two or more dwellings or are educational accommodation, and are at least 18m tall or 7 storeys. As this is different to the current draft regulations on HRB’s, it will be interesting to see how and to what extent the government brings the scope of the gateways within the Bill in line with the current planning legislation or any amendments to the same.
- The second gateway occurs prior to construction work beginning, and construction cannot begin until the Building Safety Regulator is satisfied that the dutyholder’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations.
- The third gateway is at the completion / final certificate phase where the construction work has been completed and the Building Safety Regulator assesses whether the work has been carried out in accordance with the building regulations.
We note there may be some delay to the third gateway (i.e. practical completion) where the Building Safety Regulator is required to sign off on the building (by reviewing the ‘golden thread’) before it can be occupied. This could cause issues with delay and liquidated damages being applied, depending on the wording of the particular contract.
There are separate obligations and roles to be undertaken in respect of those HRB’s that are already built (and/or in occupation) under the Bill.
In particular, the Bill places various duties and obligations on any ‘accountable person’ during occupation of an HRB, for example the accountable person must:
- regularly assess the building safety risks as regards the part of the building for which they are responsible.
- take all reasonable steps (including carrying out any works) to prevent a building safety risk materialising as regards the part of the building for which they are responsible, and to reduce the severity of any incident resulting from such a risk materialising.
- prepare a ‘safety case report’ containing any assessment of the building safety risks, and a brief description of any steps taken by any accountable person for the building. The HSE has released guidance on the type of information it expects to be within the ‘safety case report’. We refer to our comments in our previous article on the types of questions parties can ask themselves in respect of any existing information available in this regard;
- appoint a competent, named building safety manager to assist in the management and oversight of all systems and processes for meeting those obligations (although accountability remains with the accountable person). We also note that the framework of competence of Building Safety Managers has been released for consultation.
The government continues to issue ongoing updates and you can follow our comments on these at our Building and Fire Safety Hub, which includes a link to our timeline that comments on those matters relevant to construction.
Carolyn Davies is an Associate in the Construction, Engineering and Projects team at Charles Russell Speechlys LLP. Carolyn can be contacted on +44 20 7438 2149 or by email: Carolyn.Davies@crsblaw.com
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