Out-Law Analysis | 21 Jul 2020 | 4:56 pm | 5 min. read
Housing secretary Robert Jenrick described the reforms as "the biggest change to our building safety regime for 40 years". Businesses will need to quickly adapt to ensure they are prepared.
The provisions contained in the draft Building Safety Bill provide complete regulatory overhaul and signal a new era in the way we build, and the construction products we use.
A new building safety regime, overseen by the Health and Safety Executive (HSE), will apply to all new multi-occupied residential buildings over 18 metres, or six storeys, in height in England. Existing buildings will be brought within the system on a phased basis.
Cultural change in the industry will be driven by significant new duties for buildings in scope throughout their life cycle, and the mandated use of accurate digital models to maintain the 'golden thread' of building safety information. These duties will be enforced by the regulator, with serious consequences for non-compliance.
With a proven track record in health and safety, HSE will not be afraid to use its new powers.
The HSE will also gain important new responsibilities for the safety and performance of every building, regardless of height. It will oversee the performance of local authority building control and approved inspectors, advise on changes to the building regulations, and improve the competence of all involved in the building industry, including building inspectors.
New terms will be implied into long leases in England and Wales to govern the recovery of building safety costs from residents, and a New Homes Ombudsman for England will be established. Powers to introduce new regulations governing the safety of construction products and the competence of architects in England, Wales and Scotland will be granted to the secretary of state.
The government has also published a new consultation on reform of existing fire safety legislation for other buildings in England. The consultation aims to strengthen compliance and enforcement powers and improve consultation between buildings control bodies and fire and rescue services for all new development; as well as implementing the recommendations of Phase 1 of the Grenfell Inquiry.
Fire safety law expert Katherine Metcalfe of Pinsent Masons, the law firm behind Out-Law, said: "The key components of the new regime for high rise residential buildings were well trailed in the government's consultation last year and the Hackitt review. However the Building Safety Bill, together with the fire safety consultation, go much further. They represent a serious drive to improve fire and structural safety across the whole of the build environment".
Construction health and safety expert Sean Elson said: "HSE, as the new building safety regulator, will have teeth and significant enforcement powers. With a proven track record in health and safety, it will not be afraid to use them".
Those building, or carrying out significant refurbishment of, new residential high-rise buildings will be required to seek approval from HSE at three 'gateways', or stages: planning permission; pre-construction; and pre-occupation. Owners of existing buildings will be required to seek pre-occupation approval on a phased basis.
Zoe de Courcy Arbiser
The new regime is likely to require a more collaborative approach to the fixing of the design, but it also raises important questions around managing design risk.
Five categories of 'duty holder' will be created during the construction phase: client; principal designer; designer; principal contractor; and contractor. These mirror existing health and safety roles under the 2015 Construction (Design and Management) Regulations, but with new responsibilities for fire and structural safety of the building. The principal contractor and principal designer will be required to sign a declaration that the building complies with the building regulations.
Construction disputes expert Zoe de Courcy Arbiser said: "This significant regulatory reform will undoubtedly impact the approach taken to procuring and delivering in-scope construction projects, and invites consideration of whether traditional methods of contract procurement remain fit for purpose against this changed landscape".
"The new regime is likely to require a more collaborative approach to the fixing of the design by the professional and contractor teams prior to commencement of works on site, but it also raises important questions around managing design risk, in addition to delay and cost risks, where effective utilisation of technology is likely to have a significant role to play," she said.
Once the building is occupied, an 'accountable person' will have to be appointed 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. HSE will have the power to veto the appointment of unsuitable building safety managers.
It is clear that this is likely to result in a sea change as to how design is created, developed and recorded… and potentially on the ability of the parties to agilely make design changes during the construction phase.
Buildings within scope will have to be registered with the new regulator, and a safety case provided before HSE will issue a building assurance certificate allowing occupation of the building. This must be reviewed every five years. Failure to comply with the conditions in the certificate will be a criminal offence.
Duty holders will also be responsible for keeping vital safety information about how the building was designed and built and is managed up to date. This so-called 'golden thread' of information will be stored electronically for the entire life of the building. The government is likely to require that this digital record complies with building information modelling (BIM) standards.
Projects expert Kofi Atta said: "Detailed requirements as to the nature and extent of the digital information required to be submitted prior to commencement of construction – gateway 2 – and prior to occupation – gateway 3 – will be confirmed in secondary legislation to be issued in due course. However, it is clear that this is likely to result in a sea change as to how design is created, developed and recorded from inception right up to completion, and potentially on the ability of the parties to agilely make design changes during the construction phase".
The bill amends the 1984 Building Act and associated regulations for all building work. It will extend the time limit for prosecution from two years to ten years; and for section 36 notices, which require correction of non-compliant work, from one year to 10 years. New criminal liability will be introduced for breaches of the building regulations; for offences committed by a corporate body with the consent or connivance of a director, manager or officer, or where an offence is attributable to their neglect.
The Building Safety Bill, together with the fire safety consultation, represent a serious drive to improve fire and structural safety across the whole of the build environment.
The building control system will also be improved. The new building safety regulator will establish and maintain a register of individual building inspectors and building control approvers, who may be organisations or individuals. Current 'approved inspectors' who wish to continue undertaking building control work will need to register as 'building control approvers'. Registered building control inspectors will be able to provide advice to local authorities or registered building control approvers overseeing building work. Many inspectors in local authorities and approved inspectors are expected to transition into this role.
New competence requirements will apply to all of the proposed new roles, as well as to a wider range of professionals and tradespeople. The new regulator will hold and maintain a register of competent principal designers, principal contractors and building safety managers. Oversight of training and competence will be provided by an industry committee.
Separately, the government published a consultation document seeking views on complementary proposals to:
The consultation closes on 12 October.
Pinsent Masons experts will discuss the contents of the Building Safety Bill and fire safety consultation at a webinar on 12 August.
06 Jun 2019
28 Jun 2019