Plans for reforming building safety entered the next phase on 20 July 2020 as the draft Building Safety Bill was unveiled for pre-parliamentary scrutiny and consultation.
The Bill captures recommendations made by Dame Judith Hackitt and sets out measures to improve building and fire safety with the primary aim of ensuring that residents are, and will feel, safer in their homes.
So, what can we expect from these proposals if enacted in the current form?
Wholesale reform of the regulatory system by introducing:
- wider powers for the Health & Safety Executive as it steps into the role of "building safety regulator";
- heightened accountability for the built environment industry;
- mandated building assurance certificates as a pre-requisite to occupation in higher-risk buildings;
- stricter lifelong obligations in higher-risk buildings concerning design, construction and occupation;
- a new era of tenant responsibility through the introduction of mandatory contributions to building safety and "building safety charges";
- landlords as the "accountable person" with structural and fire safety responsibilities;
- the appointment of competent building safety managers;
- a stronger focus on sector specific skills in roles of heightened accountability;
- personal liability – not to be contracted out of; and
- tougher sanctions for non-compliance.
Increased regulatory powers
The HSE, as Regulator, will be responsible for ensuring compliance with the new standards of scrutiny – including:
- liaison with local authorities and fire rescue services;
- improving competence in those responsible for overseeing building work;
- assisting the built environment industry and residents;
- information sharing;
- overseeing enhanced obligations for "higher risk" buildings; and
- enforcing punishments for non-compliance.
Stricter obligations
A new definition of higher-risk buildings attempts to encapsulate lessons from the Grenfell Inquiry by categorising multi-occupancy residential buildings (with some exceptions) of 18 metres or more in height, or more than 6 storeys, above ground level, and applying stricter obligations in relation to structural and fire safety management.
A higher-risk focus is hardly surprising in a post-Grenfell world, but there is a potential for the built environment sector in particular to become two-tiered in its approach to upskilling and achieving competency, although the Regulator's authority and proposed changes to building control will extend across the whole sector without distinction.
Accountability to last a lifetime
Closer scrutiny of higher-risk buildings will apply to the lifetime of the building.
At the design and construct phase, the roles of principal designer and principal contractor will attract increased responsibility for fire and structural safety. Both parties must sign declarations to the Regulator confirming regulatory compliance, alongside the Client. Information about building design and construction must also be kept electronically and updated for its lifetime.
Although the draft Bill does not mandate the use of BIM, landlords would be well-advised to start how they need to go on; holding all essential building information in a digitally accessible format.
All higher-risk buildings must be registered with the Regulator and obtain building assurance certificates before legal occupation can occur. It is expected that there will be a phased transition process for existing buildings that are already in-occupation to allow time for retrospective adjustment to a more stringent regulatory regime.
Regulator approval for new-build, higher-risk buildings will precede occupation, with landlords requiring approval at the following three gateway stages:
- planning permission;
- pre-construction; and
- pre-occupation.
Failure to obtain requisite approval will prevent the project progressing to the next gateway, and will result in increased time and project costs.
Upon occupation the landlord will become the "accountable person", and will have overall responsibility for ensuring their higher-risk building conforms to the stricter regime. It cannot contract out of this role, but must appoint a suitably competent "building safety manager", who will be responsible for extensive day-to-day management services, including:
- ensuring ongoing fire and structural safety in and around the building; and
- pro-actively engaging with residents.
Residents do not escape accountability either. The proposal of implied terms into long leases and new resident duties will oblige residents to do their bit to uphold building safety. The draft Bill also allows landlords to pass down permissible building safety costs to residents as "building safety charges", although not without controversy.
Increased culpability
Delegating roles of heightened accountability to designers, contractors and managers – by appointing third parties with suitable skills and insurance at affordable costs – may prove difficult, particularly given the range of potential criminal and financial sanctions for non-compliance.
The sanctions set out in the draft Bill should come as no surprise. Dame Judith Hackitt warned of the need for significant sanctions to deter non-compliance and encourage recalcitrant landlords to be more pro-active in increasing safety in their higher-risk buildings.
Sanctions for non-compliance by those working in and on higher-risk buildings will vary from potentially unlimited fines to 2 years' imprisonment, depending upon the breach, and by whom it was committed.
Concluding remarks
Predicating the scale of enforcement in practice is still some way off. The draft Bill will now be heavily scrutinised before passing through parliament and becoming law. Significant secondary legislation is also required, which will attract similar consultation and scrutiny.
In the meantime, landlords should resist any temptation to delay compliance, and remember Dame Judith Hackitt's clarion call to "get on with it", in order to avoid bigger hurdles and greater cost further down the line.
