Blog Author: Michael O’Connor – Partner, Charles Russell Speechlys LLP
Taken 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 funds for the replacement of both ACM and Non-ACM cladding and the cost of waking watches, worth £1.6bn – there is no doubt that the measures comprise the most wide-ranging reforms in building safety for 40 years.
Building Safety Regulator
Initially confirmed by the Government in January 2020, Part 2 of the Bill sets out the functions of a new Building Safety Regulator (BSR), operating within the Health and Safety Executive.
The BSR will be responsible for overseeing the safety and standard of all buildings and will also have a duty to improve the competence of all persons involved in the built environment industry. Notably it will directly oversee the competence and performance of ‘building control approvers’, which replace Approved Inspectors, who will be required to register with the Regulator and may be guilty of a criminal offence and liable for a fine or imprisonment up to two years if found to have provided false or misleading information.
A new stricter regime for ‘higher risk buildings’
The BSR will be directly 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. Responsibility for determining the parameters of which buildings will be deemed a ‘higher-risk building’ will fall to the Secretary of State, who must consult the BSR, though it is currently understood it will apply to all buildings of 18 metres or more in height, or more than six storeys.
The Bill also sets out that the ‘accountable person’, deemed to have responsibility for various tasks relating to building safety and engagement with residents, would be the person who holds a legal estate in possession of any part of the common parts of a building or who is under a relevant repairing obligation in relation to any part of the common parts.
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 and to residents throughout the lifecycle of the building.
More detail needed
Whilst the Bill and the policy intention behind it is welcomed, the current draft lacks the detail as to how those policy changes are to be implemented and to fully assess the impact the Bill will have on the industry.
When the Bill was published, the Government said it was keen to receive further views from parliamentarians, residents and industry via the Parliamentary process of pre-legislative scrutiny, before the Bill is then introduced to Parliament.
On 24 November 2020, the Housing, Communities and Local Government Committee published its report on the Building Safety Bill. The Committee stressed that the Bill needed much more detail on the procedures to be implemented by the Bill, particularly in respect of the “Gateways” process and the regulation of construction projects. The Report also recommended:
- Publication of a timetable or commencement so it is clear by when the industry has to demonstrate compliance.
- An express definition of “higher risk buildings” and the factors that must be considered in the future when the scope of the regime is expanded – the ability of residents to evacuate a building being a principal factor.
- Including within the Bill provisions for establishing a national system of third-party accreditation and registration for all professionals working on the design and construction of higher-risk buildings.
- Imposing a duty to co-operate where there is more than one “accountable person” for individual buildings.
- Implementation of a national system of accreditation to agreed common standards and for a central register of building safety managers.
- Greater transparency on the testing regime of construction products and the publication of test failures and re-run tests.
At this stage, there has been no response from the Government to the Committee’s report, nor has it given any indication as to when (or if) it will publish a further draft of the Bill before it is put before Parliament. Many of the recommendations by the Committee are sensible and will either need to be included in the main legislation or secondary legislation. The devil, as ever, will be in the detail.