High-rise building safety reform: impact on existing buildings

Significant work will be required to identify or create the 'golden thread' of information about the building and to inform the safety case for its continued occupation, particularly for older buildings. A transitional implementation period is anticipated.

Organisations can start to prepare now by:

• gathering information which is available for the buildings that they own and manage;
• identifying gaps in that information, and commissioning reports where required;
• considering investment in digital information management systems to capture the golden thread of information about all buildings in scope of the new regime;
• ensuring the organisation has the right level of expertise in the use of building information modelling (BIM);
• implementing effective systems to engage with residents and deal effectively with their concerns;
• reviewing leases to ensure that appropriate contractual rights exist to allow access to individual homes for fire and building safety purposes; and
• reviewing the scope of management contracts to ensure they can accommodate the new building safety management dutyholder role.

The government is consulting until 31 July 2019 on its proposals for a new system of building safety regulation during the design, construction and occupation of high-rise residential buildings. It will apply to existing buildings as well as new buildings, and may ultimately be extended to a much wider range of buildings where people sleep. The government will consider responses to the consultation over the summer and publish its own response in the autumn, although we expect any changes from the published proposals to be fine tuning rather than a fundamental rethink.

How will the new regime be applied to existing buildings?

Under the new regime, buildings must obtain approval from the new building safety regulator at a series of 'gateway points'. The regulator will apply gateway 3 - occupation stage - to existing buildings on a phased basis once the regime is in force.

As with new builds, existing buildings in scope must be registered with the new building safety regulator and have an 'accountable person' identified in relation to them. The accountable person will be required to produce a safety case that will be approved by a regulator prior to issuing a building safety certificate.

Going beyond a traditional risk assessment, the safety case must include a full description of the building identifying hazards, describing how risks are controlled and detailing safety management systems including emergency response procedures and mandatory occurrence reporting.

The safety case must be supported by evidence. In cases where it is difficult to produce a full set of information for an existing building, the accountable person will need to be able to provide evidence of the reasonable steps they have taken to collect information or take mitigating action. Reliance on assumptions or guesswork will not be tolerated. The government suggests a type 4 fire risk assessment as a starting point. This is likely to involve destructive testing of external facades, communal areas and inside individual homes. Residents may have to move out while this work is done.

Where the need for extensive remediation work in existing buildings is revealed during preparation of the safety case, the consultation advocates a proportionate, risk-based approach to ensuring safety. The government also intends to look at ways to mitigate the cost burden of urgent repairs, for example through building insurance or warranties. Further work will be carried out in conjunction with the construction industry, residents' groups and leaseholder groups to develop options in this area and to assess the potential impact on the insurance market.

Any necessary remedial work will be regulated by the conditions which the new regulator applies to the building safety certificate. The certificate and the safety case will be subject to review every five years.

As well as appointing an accountable person for existing buildings in scope, a competent building services manager must also be identified and registered with the regulator. The building services manager will carry out the day to day functions of ensuring that the building is safely managed and maintained including engaging residents; and overseeing safety works and others employed in management, maintenance or checks of the building. The accountable person must make sure that the building safety manager has access to sufficient funds to perform their functions.

Engagement with residents

The government aims to put residents at the heart of the new regulatory system. A resident engagement strategy will be required to pass gateway 3. It will become mandatory to provide residents with certain information about the building, for example by way of a tenant handbook. A culture of openness should be created, allowing residents to request additional information. A complaints process to promptly address resident concerns will also be required.

It is equally clear that the accountable person and building safety manager will require support and engagement from residents to discharge their duties. Wherever possible, there should be contractual mechanisms in place alongside any new statutory duties on residents to regulate the use of individual flats within buildings and any modifications which might impact on the structural or fire safety of the building. The accountable person and building safety manager may require access to individual flats for these purposes.

Expected transitional arrangements

The consultation proposes that developments already underway should be required to go through the next relevant stage of the overall gateway process, depending on what stage they are at in development. For example, where planning permission has been granted but full plans have not been submitted, the project should start at gateway two. Where construction is already underway, the project should start at gateway three.

Existing buildings within the scope of the new regime that undergo significant refurbishment work must obtain approvals at similar gateways to those applicable to new builds.

Katherine Metcalfe is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law. Pinsent Masons, in partnership with the British Property Federation, will be hosting a free event to analyse what these proposals mean for the commercial real estate industry on 12 July 2019.