Last reviewed 15 October 2020
Roland Finch assesses the draft Building Safety Bill, published in July 2020.
Shortly after midnight on 14 June 2017, a fire broke out at Grenfell Tower, a 24-storey residential block in West London. By the time it was extinguished, some 60 hours later, 71 people had lost their lives, with a similar number injured.
Following the fire, the Government commissioned Dame Judith Hackitt to lead an Independent Review of Building Regulations and Fire Safety. The commission’s final report, Building a Safer Future, was published on 17 May 2018.
The review concluded that one cause of the fire spreading uncontrollably was the use of external cladding that did not comply with Building Regulations, although criticism was also levelled at the response of the London Fire Brigade, Kensington and Chelsea Borough Council, and the organisation that managed the tower on their behalf.
It declared that the system for ensuring fire and structural safety for high-rise residential buildings is not fit for purpose.
The Independent Review made 53 recommendations, which included the following.
The creation of a more effective regulatory and accountability framework to provide greater oversight of the building industry.
The introduction of clearer standards and guidance.
Placing residents at the heart of a new system of building safety, empowering them with more information, engaging them on how risks are managed in their building and ensuring effective routes for raising and escalating safety concerns.
The instigation of a culture change and a more responsible building industry from design through to construction, management and refurbishment.
The Review defined high-risk residential buildings (HRRBs) as “new and existing high-rise residential properties which are 10 storeys high or more”.
The Government accepted all the Independent Review’s findings and recommendations.
Following a lengthy consultation, the Government’s response was to publish the draft Building Safety Bill on 20 July 2020. The complete version is 331 pages long, with a further 189 pages of explanatory notes.
The Government has also promised a new Fire Safety Bill and a consultation on the Regulatory Reform (Fire Safety) Order 2005.
Altogether, this represents the biggest change in a generation and has wide-ranging implications for the construction industry.
So what does the new Bill promise? And how will it all work in practice?
A new building safety regulator
The Health and Safety Executive (HSE) was established under the Health and Safety at Work, etc Act 1974 as Britain’s national regulator for workplace health and safety. Under the Bill, it will take on the role of building safety regulator, with a broad three-part remit, described in the Bill as follows.
Implementing the new, more stringent regulatory regime for higher-risk buildings. This means being the building control authority in respect of building work on higher-risk buildings and overseeing and enforcing the new regime in occupation for higher-risk buildings. Building control authorities are responsible for checking building work to verify that it complies with the building regulations.
Overseeing the safety and performance of all buildings. This has two key aspects.
Overseeing the performance of other building control bodies (local authorities and registered building control approvers (currently known as approved inspectors). This will involve collecting data on the performance of these bodies and having the power to impose sanctions for poor performance.
Understanding and advising on existing and emerging building standards and safety risks including advising on changes to regulations, changes to the scope of the regime, commissioning advice on risks in and standards of buildings, and so on.
Assisting and encouraging competence among the built environment industry, and registered building inspectors. This has two key workstreams.
Assisting and encouraging improvement in competence of the built environment sector through several functions, including establishing and setting strategic direction of the proposed industry-led competence committee, carrying out research and analysis, publishing non-statutory advice and guidance, and so on.
Establishing a unified building control profession with competence requirements for registration as a building control professional that will be common across both public sector (local authorities) and private sector (registered building control approvers, currently known as approved inspectors).
A more stringent regime for high risk buildings
The Bill introduces five statutory dutyholders who will have statutory responsibility and accountability for managing risks across the design, construction, and occupation of HRRBs.
These are: client; principal designer; designer; principal contractor; and contractor. The titles are the same as those found in the Construction (Design and Management) Regulations, but roles and responsibilities will reflect the specific need to ensure fire and structural safety of the building. In particular, the principal designer and principal contractor will have to sign a declaration to the effect that the finished building complies with the Building Regulations.
The Bill also includes a requirement that when the building is occupied, there must be an identified “accountable person” to ensure the ongoing fire and structural safety of the building and to proactively engage with residents. The accountable person must appoint a building safety manager to run the building safely on a day-to-day basis, subject to HSE approval. The accountable person is also responsible for registering the building and applying for a Building Assurance Certificate.
The Bill gives power to prescribe competence requirements for each of the duty holders, specifically the principal designer, principal contractor, accountable person and building safety manager. In addition, a signed declaration will be needed from the client stating that they have assessed and are content with the competence of the principal designer and principal contractor.
It is envisaged that these will be set out in more detail the Building Regulations, with a new Approved Document published for this purpose.
Gateway one requirements will be fulfilled by those applying for planning permission for developments containing a higher-risk building in the form of a Fire Statement. However, the Bill notes that if a planning application is not currently required (eg because it has been permitted by the General Permitted Development Order 2015), development proposals will proceed straight to Gateway two.
Gateway two is immediately before construction work begins. It is envisaged as being similar to the current building control “deposit of full plans” stage. There is, however, the provision for a “hard stop” where construction cannot begin ‘”until the Building Safety Regulator is satisfied that the dutyholder’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations”.
Gateway three occurs at what is currently described as the completion/final certificate phase, where building work has finished, and the building control body assesses whether the work has been carried out in accordance with the building regulations. At this point, all the relevant information (the “golden thread”) must be gathered together and handed over to the accountable person.
This refers to all the information recording decisions, and relevant information about how the building was designed and built, with a particular reference to health and safety. It must be stored electronically for the life of the building and will form part of the Building Information Model (BIM) for the building, and thus comply with relevant (BIM) standards.
The Bill introduces longer time limits for enforcement and stronger sanctions for non-compliance. Breaches of the Building Regulations will become a criminal offence, for example, and the time limit for prosecution is extended from one or two to 10 years, depending on the circumstances. It proposes reform of the Building Control process, with the introduction of a register of approved inspectors.
The Government has separately announced a consultation on the reform of fire safety, with the stated aim of improving competence and accountability of persons carrying out fire risk assessments.
The Government’s agenda is certainly radical and to some observers, well overdue. It proposes wide-ranging changes, which, if they work, will mean new ways of working throughout the construction timeline. However, to operate effectively, it requires buy-in from all concerned.
It is important that responsibility and accountability does not get sidetracked by risk aversion and liability avoidance, where instead of the risks being passed to those best placed to manage them, they are left with those who have the capability to insure against them. The Construction (Design and Management) Regulations suffered from this when first introduced — complaints were raised about the additional costs, while “Planning Supervisor” rapidly became a separate discipline instead of being integrated into the design process. That took 20 years to resolve.
Let’s hope lessons have been learned, even if it takes a tragedy to provide the impetus.
Roland Finch BSc. FRICS ACI Arb. is a technical author for the National Building Specification, (NBS), specialising in preliminaries. The views expressed here are those of the author and should not be taken as representing either NBS or NBS Enterprises Ltd.