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Consultation on new building safety regulation for England begins

Out-Law News | 06 Jun 2019 | 4:53 pm | 3 min. read

Plans to overhaul the regulatory system for building safety in England, including the introduction of a new building safety regulator, have been published for consultation by the UK government.

The new regime would apply to all new multi-occupied residential buildings over 18 metres, or six storeys, in height; bringing it into line with the ban on combustible cladding announced in December. Parts of the new regime regulating the occupation of buildings would also apply to existing buildings above the height threshold.

The consultation runs until 31 July 2019. An additional call for evidence on the effectiveness of the current fire safety legislation for higher-risk workplaces and multi-occupancy residential buildings under the height threshold closes on the same date.

The government is anticipating that almost 15,000 buildings in England will be covered by the new regime by 2029.

Health and safety law expert Katherine Metcalfe of Pinsent Masons, the law firm behind Out-Law.com, said that the government's proposals "go significantly beyond in a number of respects" the recommendations of Dame Judith Hackitt in her independent review of building regulations and fire safety.

"The new regulatory regime will apply to many more buildings than Hackitt proposed which has the potential to prompt a widespread cultural shift for housing, and more broadly for the UK's built environment," she said.

"The new building safety regulator will have teeth and significant enforcement powers. The question remains as to how new duties will be rolled out and policed, which will be crucial to its success. The emphasis on identifying senior individuals within organisations who will be responsible for fire and building safety is a clear statement of intent about who should be held to account if safety is not achieved," she said.

Hackitt's final report, published in May 2018, made more than 50 wide-ranging recommendations aimed at changing the culture of the construction of high-rise buildings and improving fire safety. Her report proposed the creation of a new 'joint competent authority' which would sit at the heart of a strengthened regulatory regime, allowing the existing bodies responsible for building standards and fire safety to collaborate more closely.

The government has gone further than this, instead proposing the creation of a new building safety regulator. This new regulator would oversee the new regulatory regime, industry competence initiatives and a mandatory occurrence reporting regime, backed by significant powers to impose civil and criminal penalties. It is not yet clear how this new regulator would interact with the bodies which currently have oversight of different aspects of the regime such as local authority building control, fire and rescue authorities and the Health and Safety Executive.

Metcalfe Katherine

Katherine Metcalfe

Legal Director

The new regulatory regime will apply to many more buildings than Hackitt proposed which has the potential to prompt a widespread cultural shift for housing, and more broadly for the UK's built environment.

Those building or carrying out significant refurbishment of new residential high-rise buildings would be required to seek approval from the new regulator at three 'gateways', or stages: planning permission; pre-construction and pre-occupation. Owners of existing buildings will be required to seek pre-occupation approval from the new regulator on a phased basis.

Five categories of 'duty holder' would be created during the construction phase: client; principal designer and designer; and principal contractor and contractor. These would mirror existing health and safety roles under the Construction (Design and Management) Regulations 2015, but with new responsibilities for fire and structural safety of the building. The principal contractor and principal designer would be required to sign a declaration that the building complies with the building regulations. The government has proposed that a named director should be identified as having responsibility for building safety where the duties are discharged by an organisation.

Once the building is occupied, an 'accountable person' must be appointed to ensure the ongoing fire and structural safety of the building, and to proactively engage with residents. This will usually be the building owner or a management company. The accountable person, and building safety managers appointed by them, would have to be registered with the new regulator. Buildings within scope would have to be registered with the new regulator, and a safety case and building safety certificate provided. These must be reviewed every five years. Failure to comply with the conditions in the certificate would 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.

New competence requirements would 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 would be provided by an industry committee, which the government is minded to have the new regulator appoint.

The UK government intends to consult with the devolved governments on enhanced regulation for construction products as part of the reform programme.