Enforcement under the draft Building Safety Bill
The draft Building Safety Bill (the draft Bill) has sparked widespread discussion in the sector surrounding its proposed measures for enforcing future compliance with building regulations.
The distinction between those proposals and measures that are already in existence (but arguably not commonly enforced) under the Building Act 1984 (the BA) is explored in this article.
This table sets out a series of prosecutable offences under the draft Bill alongside details of:
- The proposed penalties for committing those offences under the draft Bill; and
- The extent to which (upon enactment) those proposals will amend, repeal or replace provisions currently in force under the BA.
Power of prosecution under the BA
Non-compliance with building regulations has been a criminal offence under the BA for nearly 40 years, as is highlighted in the Table. Local authorities are already able to enforce compliance with building regulations under the BA by exercising powers to:
- Issue enforcement notices which require the removal or alteration of work that does not comply with building regulations;
- Apply to the Courts for injunctive relief regarding the removal or alteration of any work that contravenes building regulations; and
- Prosecute those responsible for contravening building regulations in the Magistrates' Court.
However, there is a time limit for prosecution from the date the offence was committed of two years (under section 35) or one year (under section 36); and the maximum penalty for contravening building regulations under the BA is an unlimited fine (since 12 September 2015; or £5,000 before that date); plus £50 per day for each day that the contravention continues post-conviction.
The scope of available measures for enforcing compliance with building regulations is somewhat narrowly defined in the BA, and this is brought into sharper focus by the broad range of proposals for enforcing compliance under the draft Bill.
Extended power and scope of enforcement under the draft Bill
The draft Bill heavily extends the scope of available power to enforce compliance and/or impose penalties for contraventions, and places much of that power in the hands of the Health & Safety Executive (HSE), as it establishes the proposed new role of Building Safety Regulator (BSR).
Upon enactment, the BSR will have the power to enforce compliance with building regulations under the draft Bill and the BA by (inter alia):
1. Issuing "compliance" and "stop" notices under clause 40, which respectively demand that:
- an actual or likely contravention of building regulations is rectified within the time specified on the notice (pursuant to the proposed new section 35B of the BA); and
- all work specified within the notice is stopped by the specific date (pursuant to the proposed new section 35C of the BA).
Those two proposals extend the current power to issue enforcement notices under the BA to circumstances where the contravention has not yet occurred, and is, instead, "likely".
2. Introducing the maximum penalty for breach of a compliance or stop notice that is not successfully appealed to the First Tier Tribunal of an unlimited fine and up to two years' imprisonment (under new sections 35B and 35C of the BA and clauses 42 and 91 of the draft Bill).
3. Increasing the maximum penalty for contravention of applicable building regulations under section 35 to an unlimited fine and a fine of £200 per day (at the time of writing) for each day that the contravention continues post-conviction.
The penalty of an unlimited fine is already in force under the BA, but the draft Bill proposes that the daily fines post-conviction are quadrupled in order to mirror inflation since the enactment of the BA in 1984.
4. Extending the time limit for prosecution of breaches under sections 35 and 36 of the BA from two years and one year respectively to ten years under the draft Bill.
Other notable powers of prosecution by the BSR
Local authorities and building control approvers will also be subject to heightened scrutiny where they are found to have acted in breach of operational standards rules under the draft Bill, as the BSR will be afforded power to issue improvement notices upon them, or serious contravention notices where that breach may place the safety of persons in or about the building at risk.
The BSR will also have the authority to prosecute individuals of corporate bodies (who have contravened building regulations) and other individuals/ bodies who have defined roles (and scope of duties owed) under the draft Bill, which they have not fulfilled. Penalties upon prosecution are set out in the Table, and include fines and custodial sentences of up to two years. Those penalties appear to be a powerful deterrent.
Potential defences to non-compliance are created in the draft Bill where it was not "reasonably practicable" to perform certain statutory obligations, or where there is a "reasonable excuse". The lack of clarity surrounding those terms is likely to be a cause for future debate.
The power to enforce compliance with building regulations has been in existence for decades, albeit on a far narrower scale than is proposed in the draft Bill. The dramatic upshift in the proposed power of prosecution, and tougher penalties for non-compliance under the draft Bill, echoes the sentiment of the draft Bill's accompanying explanatory note 3, which confirms:
"the objectives of the draft Bill are to learn the lessons from the Grenfell Tower fire and to remedy the systematic issues identified by Dame Judith Hackitt by strengthening the whole regulatory system for building safety".
It is hoped that the BSR takes a more proactive stance to the broad scope of enforcement measures available to it in the draft Bill, as Dame Judith Hackitt's public statements have suggested it will, and that it has the resources and funding to do so. Otherwise, the new and extended measures may be all bark and no bite.
Furthermore, in our view, the key to ensuring building safety going forward will not rest on the sanctions and enforcement of the draft Bill, but in the wholesale change of culture and attitudes we hope it will bring through other measures, such as the focus on competence and the allocation of responsibilities through the duty holder regime.