In June 2019 the Government published its Building a Safer Future consultation, outlining its proposals for legislative reform of the building safety regulatory system. As expected, most of the recommendations in the Hackitt Review have been accepted. If adopted, the new regime will radically alter the way in which building safety is maintained in the future. Here's a quick guide to what is set to be a major shake-up of the building industry.
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 buildings over 30 metres (referred to as "in-scope buildings"). The proposals cover new build and 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 other non-residential buildings where people sleep (e.g. sheltered housing, prisons and hospitals).
Dutyholders
The proposals create new dutyholder roles, with legal obligations to ensure 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, who will be identified as having responsibility for building safety. Criminal liability will attach to any non-compliance with dutyholder obligations. The Government is also considering placing all dutyholders under a statutory duty to promote building safety and the safety of people in and around inscope buildings, both during the design and construction and occupation stages of a building’s life cycle.
Dutyholder obligations during the design and construction phase will broadly follow the CDM Regulations which have defined roles and responsibilities of “Client”, “Principal Designer”, “Principal Contractor”, “Designer” and “Contractor”. Dutyholders will be required to co-operate and share design information with a newly created Building Safety Regulator, and also 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 (i.e. is safe for residents to live in).
Gateways
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 construction is permitted to move to the next gateway.
Gateway 1 – 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 whether planning authorities should consider fire safety for buildings within the “vicinity” of in-scope buildings.
Gateway 2 – applies to all in-scope buildings over 18 metres and some major refurbishments at the “full plans building application” stage, and must be satisfied before construction commences. Dutyholders will need to demonstrate “the case for safety” by providing the Regulator 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 Regulator 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 Regulator before proceeding. Failure to satisfy the Regulator will result in a “hard stop” of the construction project.
Gateway 3 – 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 Regulator before they can be occupied. As part of this registration process, accountable persons must submit a safety case to the Regulator 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 hard to gather. All safety cases will need to be reviewed and registrations reapplied for at least every five years while the building is occupied.
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 Regulator, 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 during 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 standards for creating and managing digital information. It is intended that the golden thread of information will be open and accessible to residents by default, subject only to limited exemptions.
Mandatory reporting and resident engagement
The proposals will require mandatory reporting of fire and structural safety issues to the Regulator within 72 hours, both during the design and construction and occupation stages. To support this process, the Government proposes express whistleblower protections to allow formal complaints to be made without fear of retribution.
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 engage with residents, and an engagement plan setting out how the strategy will work in practice (including an internal process for residents to raise building safety concerns). Residents must be provided with a clear and quick route of escalation to the Regulator if their concerns are not dealt with effectively. The Government is also considering requiring residents to cooperate with accountable persons and Building Safety Managers, including giving reasonable access to residents' homes for inspections.
New regulatory regime
A new national Building Safety Regulator will be established, responsible for overseeing the new regime, maintaining a register of in-scope buildings and inspecting buildings and safety information to ensure that dutyholders and accountable persons meet their obligations. The Regulator will ensure stronger enforcement and sanctions for 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 Regulator may also prosecute dutyholders and accountable persons for non-compliance of their respective duties. The Regulator will also be responsible for setting building standards, advising the Government on changes to the regime, and promoting competence in the building industry.
Sanctions and enforcement
It will be a criminal offence for dutyholders to carry out construction work without having acquired the necessary permissions from the Regulator. 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 or who breach any conditions imposed by the Regulator. 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, and a missed opportunity to make radical and beneficial change to current UK procurement practice.
