Government commits to tougher building safety framework

Out-Law News | 20 Dec 2018 | 4:25 pm | 3 min. read

The government has committed to a programme of building and fire safety regulatory reform in England, in response to Dame Judith Hackitt's review of the current regime.

Many of the proposals in the government's building safety implementation plan will require further consultation, beginning in the new year. However, communities secretary James Brokenshire has promised more rigorous building standards, a greater role for residents and tougher sanctions for those who break the rules.

Central to the 50 recommendations in Hackitt's final report of May 2018 was the creation of a new, statutory 'joint competent authority' (JCA), allowing local authority building standards, fire and rescue authorities and the Health and Safety Executive (HSE) to collaborate more closely when overseeing the approval, construction and occupation of high-rise residential buildings (HRRBs). The government will quickly set up a joint regulators' group to trial elements of this new system ahead of any new proposed legislation.

Fire safety regulation expert Katherine Metcalfe of Pinsent Masons, the law firm behind, said that the new joint regulators' group would "bring together the key players who will ultimately form the recommended JCA to test out different ways for them to work together to find the optimal solution".

"The government is also proposing early action to make fire and rescue authorities statutory consultees in the planning process, in order to strengthen their role," she said.

"The government has also listened to Hackitt's recommendation that the new regulatory regime should extend beyond residential buildings of 10 storeys, to other buildings where multiple people sleep. This will form part of the consultation," she said.

The government has already announced a ban on the use of combustible cladding on the external walls of new high-rise buildings over 18 metres in height with effect from 21 December 2018, along with support for local authorities needing to remove and replace unsafe cladding from private buildings. It has now published additional calls for evidence on the fire safety 'approved document B' technical guidance within the building regulations, which closes on 1 March 2019; and on how residents and landlords can work together to keep buildings safe, which closes on 12 February 2019.

The implementation plan confirms the government's intention to introduce a new regulatory and accountability framework for HRRBs of more than 10 storeys, with the potential to extend this to cover a wider range of multi-occupancy residential buildings and institutional residential buildings following further consultation. The joint regulators' group will begin trialling elements of this new system soon, and assist with the transition to the new regulatory framework.

The new regulatory framework will be based on "chang[ing] the culture and mindset of those involved in the procurement, design, construction, maintenance and occupation of buildings, so that they take proper ownership of the potential building safety risks". The government will consult in the spring on how best to implement a system of 'dutyholders', similar to that which already operates in the health and safety and construction site management regimes, so that those responsible for ensuring safety at each stage of the project lifecycle are clearly identifiable.

The new regime will be backed by stronger sanctions and enforcement powers for regulators, which will again be subject to consultation. Regulators will also be given more opportunities to intervene at various regulatory 'gateways' throughout the design and construction lifecycle, where the onus will be on the dutyholder to demonstrate that they are "actively managing" safety risks.

Clearer standards and guidance will be introduced, with a 'standards committee' established in the next 12 months to advise the government on new and existing construction product and systems standards. The government also intends to give residents a greater role in the process, by introducing new requirements on dutyholders to provide them with more detailed safety information and introducing more effective routes for resident engagement and redress.

Construction disputes expert Zoe de Courcy Arbiser of Pinsent Masons said that whilst the industry would no doubt welcome greater clarity on building standards and the new regulatory framework going forward, Hackitt had shied away from recommending a prescriptive approach, and rather had advocated that responsibility be placed back on the industry with more rigorous oversight. 

"It remains to be seen how this will play out, but regardless of the position going forward there remains considerable uncertainty within the industry as to who is responsible for meeting the costs of remediating cladding on existing buildings, and the availability and terms of any funding," she said. "Whilst it is important to look forward, it is also critically important to deal with the immediate issues facing the industry, which does involve government playing its part.