Despite the distractions of COVID-19 and Parliamentary criticism of the speed of necessary cladding repairs, regulatory reform of building safety is now a step closer following the publication of the draft Building Safety Bill. The draft Building Safety Bill takes forward the Government’s commitment to fundamental reform of the building safety system as set out in its response to the Building a Safer Future Consultation.

What's the latest position regarding cladding repairs?

In a newly published report, the Public Accounts Committee, has criticised the speed of repairs of dangerous cladding, despite the availability of the £600m fund to replace ACM cladding, and suggests that more should be done to prioritise and plan the use of the extra £1billion building safety fund to remove and replace unsafe non-ACM cladding, such as high-pressure laminate.

Within the report is an acknowledgement that a lack of capacity and skill, particularly in fire safety engineers, is hampering efforts and that past regulatory failings have led to a legacy of problems which need to be put right. Of course, regulatory reform has been high of the Government's agenda since Dame Hackitt's recommendations.

Draft Building Safety Bill

Announced as the biggest building safety regulatory change for decades, the Bill is now subject to pre-legislative scrutiny by a Parliamentary Select Committee before being finalised and then formally introduced for debate to the House of Commons and the House of Lords.

What does the draft Bill do?

The new Bill seeks to overhaul the current regulatory regime for higher-risk buildings in England and Wales of a prescribed height and will bring about key changes which have been well trailed.

In addition to this new more stringent regulatory regime there are enhancements that apply to all buildings such as a co-ordinated approach to building performance, safety standards and building control, and the establishment of industry-led committees on industry competence to drive improvements.

A new more stringent regulatory regime for higher-risk buildings

A new Building Safety Regulator will be responsible for the building control regime for higher-risk buildings. This new regime will involve:

• new powers for the Building Safety Regulator to ensure compliance through prosecution, and increased fines
• a new duty holder regime along the lines of the CDM Regulations to ensure compliance with Building Regulations
• more stringent Gateway requirements for high-rise residential buildings through the design, construction, occupation and refurbishment of buildings in scope
• requiring a golden thread of building information to be created, stored and updated through the Gateway process and throughout the building's life-cycle
• mandatory reporting to the Building Safety Regulator for fire and structural safety occurrences which could cause a significant risk to life safety
• building registration and certification to confirm a building is safe for occupation
• creating an ongoing duty on the new Accountable Person to assess building safety risks and to provide Safety Case reports.

What buildings will be covered by the new regulatory regime?

The Explanatory Notes to the draft Bill set out the proposed buildings in scope which are referred to as "higher-risk buildings" but there are provisions enabling the definition to be broadened by the Secretary of State should new information emerge or in the light of experience of operating the new regime. Buildings in scope are therefore:

• A building of at least 18 metres or more than six storeys (whichever is reached first); and which contains:
• two or more dwellings ie house, flat or serviced apartments, or
• two or more rooms for residential purposes (eg supported accommodation) or
• student accommodation.

Excluded from the definition are residential care homes, secure residential accommodation (such as prisons or detention centres) and temporary accommodation, such as hotels, hostels, guest houses, hospitals and hospices. Initially the proposed regime will apply to new buildings but it is expected to apply to existing buildings in due course although the detail on that is unclear. 

Gateway interventions and Golden Thread

The policy on gateway interventions is being developed through statutory instrument which will set out the practical details. Three Gateway points are envisaged at planning stage, prior to construction and prior to occupation at which stage all prescribed information (in the form of the golden thread) will be handed over to the new duty holder, the Accountable Person. The Building Safety Regulator will be able to issue compliance notices and stop notices for non-compliance.

The golden thread of information to be held digitally to ensure that the design intent and any design changes are captured, preserved and used to support safety improvements.

New responsibilities for duty holders

Formal duties to comply with the building regulations will apply for those involved in the design, construction, operation and refurbishment modelled along the lines of the CDM Regulations 2005. The detail will be set out in regulations in due course.

A system of mandatory reporting systems to enable on site reporting of structural and fire safety occurrences will also need to be established by the duty holders.

Significantly, the Explanatory Notes suggest that for higher-risk buildings the client will need to sign a declaration that they are satisfied that the Principal Designer and the Principal Contractor are competent.

Accountable Person

The new duty holder in the occupation phase, the Accountable Person, will:

• be required to set up mandatory reporting systems regarding structural and fire safety occurrences
• be responsible for registering the building and applying for the Building Assurance Certificate
• need to demonstrate that they are complying with their duty to manage building safety risks through a Safety Case report which they will be required to keep up to date and submit to the Building Safety Regulator
• appoint a Building Safety Manager who must be notified to the Building Safety Regulator
• promote a strong partnership between the Building Safety Manager and residents to include a Resident's Engagement Strategy.

The Accountable Person is a person who holds the legal estate in possession of the common parts; or a person who is under a relevant repairing obligation in relation to any part of the common parts. The Explanatory Notes accompanying the draft Bill suggest that the freeholder will usually be the Accountable Person but the Accountable Person could be a management company or other sub-landlord with repair and maintenance obligations of the common parts.

The Accountable Person will also need to co-operate with the Responsible Person under the Regulatory Reform (Fire Safety) Order 2005 where this is a different person.

The Building Safety Manager

The Building Safety Manager is to assist the Accountable Person and is responsible for managing the building in accordance with the safety case. The appointment by the Accountable Person can be vetoed by the Building Safety Regulator.

New building safety charge for leaseholders

The draft Bill introduces duties on residents to keep relevant parts of their premises in repair and not to damage safety items.

Additionally, terms will be implied into long leases (over 21 years) in favour of each leaseholder, requiring landlords to carry out necessary safety works. In return, a new building safety charge for leaseholders is proposed, separate to the service charge.

Landlords will need to use a designated building safety charge account and will need to provide budgets and estimates of the building safety measures to leaseholders. There are some controls to ensure that leaseholders do not face unaffordable costs in the future and leaseholders will be able to refuse to pay the charge if the charge is "unreasonable". This proposed new charge will undoubtedly be an area for scrutiny by the Parliamentary Committee.

Enforcement

The Building Safety Regulator will be able to issue Compliance or Stop Notices and contravention of a such notices will be an offence punishable on conviction by imprisonment and/or a fine.

A failure by the Accountable Person to register a higher-risk building before its occupation will also be an offence punishable by imprisonment and/or a fine.

Time limits for prosecuting breaches of building regulations are also to be extended from 2 years to 10 years, and for enforcing non-compliant work from 12 months to 10 years.

New provisions are included to make directors and managers liable for offences under building safety legislation where breaches are due to their consent, connivance or neglect.

Overseeing the safety and performance of ALL buildings

A second function of the Building Safety Regulator is to assume responsibility for overseeing the safety and performance of all buildings. This will include:

• Oversight of the performance of building control bodies (local authorities and registered building control approvers) for all buildings
• Advising on building safety risks and changes in scope of the building safety standards, regulations or regime.

Building control

Looking at building control, the Building Safety Regulator will assume responsibility for the oversight, competence and performance of building control and to create a unified regulatory structure.

The Building Safety Regulator will need to maintain a register of Building Inspectors (individuals providing advice and guidance) and Building Control Approvers (either organisations or individuals). Building Control Approvers can be local authority building control and the current "Approved Inspectors" who will need to register as ‘Building Control Approvers'. The Registered Building Inspector is a new role for individuals who will be able to advise both to local authorities or registered Building Control Approvers.

Building Inspectors and Building Control Approvers will have minimum competency requirements. Both professionals will be able to commit a new offence of acting outside the scope of their registration. There are also provisions to establish a Code of Conduct and to give the Building Safety Regulator power to undertake professional mis-conduct investigations, cancel an individual's registration or to serve improvement notices.

For higher-risk buildings the building control body will be the Building Safety Regulator removing the ability of developers of such buildings to choose the building control authority.

Assisting and encouraging competence among the built environment industry

The third function of the Building Safety Regulator is to oversee the development of competency frameworks and drive improvements. In addition to the register of building control professionals and competencies, a series of competency frameworks is being developed in conjunction with the building industry.

Architects will also face greater regulation as the draft Bill introduces a power for the Architect's Registration Board (ARB) to monitor the competence of architects. Architects will need to register with the ARB and the ARB will have the power to remove them from the Register for misconduct or serious professional incompetence.

A Committee on Industry Competence will also be formally established by the Building Safety Regulator to ensure a consistent approach with regard to improving competence. Two other new Committees, the Building Advisory Committee, to oversee performance and provide expert advice, and the Residents Panel, where residents can contribute to policy changes, also fall under the new Regulator's remit.

Other developments

New National Construction Products Regulatory Role

Also included in the draft Building Safety Bill are provisions for a new national Construction Products Regulatory role. Through regulations, the Secretary of State can regulate all construction products placed on the UK market. The regime will identify designated standards for construction products and a statutory list of safety critical products. Construction products which are not designated or on the statutory list, or subject to a UK technical assessment,will be subject to a general safety requirement.

Regulatory Reform (Fire Safety) Order 2005 (FSO)

Published alongside the draft Building Safety Bill is the Consultation into the Regulatory Reform (Fire Safety) Order 2005 (FSO), due to close on 12 October 2020. The proposals include amendments to provide for greater clarity around the identification of the Responsible Person and to align the FSO with the regime under the draft Building Safety Bill. This makes sense as there is clearly potential for overlap of the two regimes, in particular, where there is a mixed-use building.

Fire Safety Bill

The Fire Safety Bill currently before Parliament clarifies that the FSO does apply to the external walls, including cladding and balconies, and individual flat entrance doors in multi-occupied residential buildings.

Comment

Building safety reform remains a priority for the Government which is urging the industry to start preparing for the new regime under the draft Building Safety Bill.

There is no detail yet as to what sort of transition period will be put in place, nor when the draft Building Safety Bill will be enacted. Nevertheless, it is clear that the Government is serious in its intent and that under the draft Building Safety Bill construction, ownership and maintenance of buildings within scope of the new regime will become more onerous.

We will continue to provide updates on developments but please contact us if you require specific help or advice.