A quick guide to the key consultation proposals for reform of the building safety regulatory system.
On 6 June 2019, the Government published a consultation document, “Building a Safer Future”, outlining its proposals for legislative reform of the building safety regulatory system.
As expected, most of the recommendations in Dame Judith Hackitt’s 2018 Independent Review of Building Regulations and Fire Safety have been accepted.
The 192 page consultation document seeks responses on over 120 questions, which will radically alter the way in which building safety is safeguarded and maintained in the future. A brand new regulatory regime is proposed involving stringent accountability arrangements, beefed-up sanctions, personal and corporate liability and whistle-blower protection for those that call-out poor design and construction practice.
With the public consultation closing on 31 July 2019, there is a short window for responses to be made. Here’s a quick guide to the key points of the consultation proposals.
Scope of the reforms
The new regime will cover all multi-occupied residential buildings of more than 18 metres (6 storeys) with enhanced obligations for residential buildings over 30 metres. These are “in-scope” buildings. The new obligations will cover new build and some major refurbishments, with a gradual roll-out of obligations to existing buildings in occupation. The Government is consulting on whether the reforms should be extended to mixed use developments and other non-residential buildings where people sleep (eg prisons, sheltered housing, hospitals and schools).
New Dutyholder regime
New Dutyholder roles with legal obligations to ensure that in-scope buildings are designed and built to be safe for their residents. Dutyholders may be individual persons or legal entities. Legal entities may be required to nominate an “Accountable Person” at Board level - identified as having responsibility for building safety. Criminal liability will attach to any non-compliance with Dutyholder obligations.
Dutyholder obligations will apply during the design and construction phase of all in-scope buildings over 18 metres and some major refurbishments, broadly following the CDM Regulations which have defined roles and responsibilities of “Client”, “Principal Designer”, “Principal Contractor”, “Designer” and “Contractor”. The Government is also considering placing all Dutyholders under a statutory duty to promote building safety and the safety of people in and around in-scope buildings, both during the design and construction and occupation stages of a building’s life cycle.
All Dutyholders during the design and construction phase will be required to co-operate and share information with a newly created Building Safety Regulator (BSR), and ensure that the people they employ are competent. “Competence” is defined as “the ability of an individual to apply the necessary skills, knowledge and behaviours to make informed decisions and carry out their job effectively.”
Dutyholders must not accept appointments unless they have the relevant skills, knowledge, experience and behaviours to ensure that their work promotes compliance with the Building Regulations (eg. is safe for residents to live in).
Gateways
Based on a “safety case” approach, dutyholders will need to comply with three Gateways for the design and construction of buildings and some major refurbishments, and demonstrate that they are managing building safety before they are permitted to move to the next Gateway.
Gateway One – applies to in-scope buildings of 30 metres and above, and major refurbishments requiring planning permission, and must be satisfied before planning permission is granted. Planning applicants will be required to submit a Fire Statement with their planning application, covering fire service vehicle access and access to water supplies. The Government is considering whether fire and rescue authorities should be statutory consultees to the planning process, and also whether planning authorities should consider fire safety for developments/ buildings within the “vicinity” of in-scope buildings.
Gateway Two – will be introduced at the current “full plans building application” stage and apply to all in-scope buildings over 18 metres and some major refurbishments, and must be satisfied before construction commences. Dutyholders will need to demonstrate “the case for safety” by providing the BSR with detailed plans in respect of fire safety, 3D digital models of the building and a Fire and Emergency File (all produced by the Principal Designer) and a Construction Control Plan (produced by the Principal Contractor).
Dutyholders will also need to demonstrate to the BSR sufficient skills, competence and effective management of building safety risk. Major changes that may compromise building safety will need to be notified to and approved by the BSR before proceeding. Failure to satisfy the BSR will result in a “hard stop” of the construction project (and is intended to incentivise Dutyholders to think holistically about outcomes and fire safety at the earliest opportunity).
Gateway Three – applies to all in-scope buildings over 18 metres, and must be satisfied before occupation. Dutyholders will need to provide the Client with building safety information to form “the case for safety” for occupation and safe management of the building. Principal Designers and Principal Contractors will be required to provide a declaration to the Client that the building complies with the Building Regulations.
Duties in occupation
In-scope buildings (both new and existing) will need to be registered with the BSR before they can be occupied. As part of this registration process, Accountable Persons must submit a safety case to the BSR for approval before a building safety certificate is issued.
Safety cases for existing buildings are likely to require less information than for new buildings (in recognition that such information is likely to be extremely hard to gather). All safety cases will need to be reviewed and registrations re-applied for at least every five years while the building is in occupation.
Accountable Persons will be legally responsible for ensuring that fire and structural safety risks in occupied in-scope buildings are reduced so far as is reasonably practicable. Accountable Persons should be the individual or corporate entity with control of the building and who receives rent or service charges from the residents, so may be the building owner or a management company. Specific duties will include registering buildings with the BSR, complying with the requirements of building safety certificates, carrying out and submitting safety cases demonstrating that they have reduced risk, and appointing a Building Safety Manager. Accountable Persons will not be able to transfer their liability, and will incur criminal liability for non-compliance.
Building Safety Managers, named by the Accountable Person, will be responsible for carrying out day to day functions of ensuring the building is safely managed, engaging with residents and overseeing safety works, and supporting the Accountable Person to manage building safety risk.
Duties running through a building’s life cycle
A “golden thread” of building design and operation information must be created and regularly updated by Dutyholders (in design and construction) and Accountable Persons (in occupation) for all in-scope buildings.
The golden thread of information must be digitally stored, and the Government is considering mandating Building Information Modelling (BIM) standards for creating and managing digital information. It is intended that the golden thread of information is open and accessible to residents by default, subject only to limited exemptions.
A new system of mandatory reporting of fire and structural safety issues to the BSR, both during the design and construction and occupation stages of an in-scope building. To support this process, the Government proposes express whistle-blower protections for construction workers to allow formal complaints to be made without fear of retribution.
Resident engagement
Accountable Persons and Building Safety Managers must proactively provide residents with core building safety information in a clear and accessible format (rather than on request), and must also develop and implement a Resident Engagement Strategy that empowers residents to ensure that their homes and buildings remain safe.
All Strategies must contain a management summary setting out how the Accountable Person will deliver resident involvement, and an engagement plan for residents setting out how the strategy will work in practice, including an internal process for residents to raise building safety concerns.
Residents of in-scope buildings must be provided with a clear and quick route of escalation to the BSR if their concerns are not dealt with effectively.
The Government is also considering a new legal requirement on residents to cooperate with Accountable Persons and Building Safety Managers, including giving reasonable access to their homes.
New regulatory framework
The Government will establish a new national BSR, responsible for overseeing the new regulatory regime for in-scope buildings, maintaining a register of in-scope buildings and inspecting buildings and safety information to ensure that Dutyholders and Accountable Persons meet their obligations. The BSR will also be responsible for setting building standards, advising the Government on changes to the regime, and promoting competence in the building industry.
The Government intends to review and raise levels of competence in the building industry, by strengthening the oversight and regulation of construction products, increasing market surveillance and oversight, and extending and strengthening independent assurance schemes. The Government also proposes regular periodic reviews of the regulatory framework, to be undertaken by an independent body.
Enforcement, compliance and sanctions
The BSR will ensure stronger enforcement and sanctions for non-compliance, by informally working with Dutyholders and Accountable Persons.
The BSR will also provide proactive intervention and monitoring of non-compliance, including stopping construction projects that fail to achieve Gateways, issuing improvement notices and fines, ordering the demolition of non-compliant building work, and revoking Building Safety Certificates for non-compliant buildings. The BSR may also prosecute Dutyholders and Accountable Persons for non-compliance of their respective duties. It will be a criminal offence for Dutyholders to carry out construction work without having acquired the necessary permissions from the BSR. Criminal liability will also apply to Accountable Persons who fail to apply for building registration within required time limits, allow the occupation of buildings without a valid Building Safety Certificate and/or breach any conditions imposed by the BSR.
The Government is considering extending claims under the Building Act 1984 to start from the time a serious defect is discovered, and to extend limitation periods for claims for up to ten years, and also allowing private civil actions against Dutyholders and Accountable Persons for failures in building safety.
What’s missing?
The consultation document does not make any express provisions to deal with Part 9 of the Hackitt Review, which recommended changes to procurement practices and contract terms. Given Dame Judith’s comments about the importance of procurement in setting the tone of construction projects and ensuring that quality and fire safe outcomes are prioritised, this is a disappointing omission.
It is likely that the Hackitt recommendations will be dealt with via non-legislative measures, such as Procurement Policy Notes, but nonetheless this is a missed opportunity to make radical and beneficial change to current UK procurement practice.
