Author
Rona Westgate

Rona Westgate

Senior professional support lawyer

Read More
Author
Rona Westgate

Rona Westgate

Senior professional support lawyer

Read More

15 December 2020

Under Construction - Q4 2020 – 1 of 5 Insights

Draft Building Safety Bill requires more detail

  • Briefing

The Housing, Communities and Local Government Committee (Committee) has now completed its pre-legislative scrutiny of the daft Building Safety Bill.

Whilst welcoming the policy intent behind the draft Bill, the Committee has found that in its current form, the draft Building Safety Bill fails to provide sufficient detail since it relies on as yet unpublished secondary legislation; and urges that much more detail be included when the final Building Safety Bill is introduced to enable certainty as to how the regime will work in practice.

Recommendations

The recommendations set out in the Committee's report include:

  • inclusion of as much detail in the Bill itself or publication of secondary legislation alongside it, especially for the Gateways process and the regulation of construction products
  • publication of a timetable for commencement of the new regime so it is clear by when the industry has to demonstrate compliance and the Building Safety Regulator establish the regime
  • definition of higher risk buildings to be included in the Bill and not left to explanatory notes; and publication in the Bill of other risk factors that will be taken into account in the future when the scope of the Bill is expanded, particularly the vulnerability of residents and their ability to evacuate the building
  • recommitment by Government to the principle that leaseholders should not pay anything towards the cost of remediating historical building safety defects
  • inclusion in the Bill of provisions for establishing a robust national system of third-party accreditation and registration for all professionals working on the design and construction of higher-risk buildings
  • removal of choice of building control entirely from the building control system; and replacement of a system of independent appointment for all buildings, not just higher risk buildings
  • imposition of a general duty to co-operate in buildings where there is more than one accountable person; publication of statutory guidance alongside the Bill setting out the sorts of behaviours expected under such a duty
  • publication of statutory guidance on the co-operation between the accountable person and the responsible person
  • provision of details of competency framework for the new role of Building Safety Manager to enable industry to recruit and train people; and publication in the Bill or statutory guidance of details of a national system of accreditation, and a central register, of Building Safety Managers
  • publication of test failures and re-run tests of construction products and establishment of an independent and unified system of third-party certification.

Scope and Timetable

As previously mentioned, the draft Bill contemplates the new regime applying to higher risk buildings but leaves the definition in the Explanatory Notes. The Committee recommend that the definition be included with the Bill itself, together with the further risk factors to be considered in the future when the scope of the Bill is to be expanded. This will provide certainty as to how the regime will work in practice.

The Committee also call for the proposed timetable to be published to provide some clarity as to when the new regime will come into effect.

Leaseholder Building Charge

As we suggested when the draft building safety bill was announced the proposed building safety charge for leaseholders to pay for building safety measures has been criticised by the Committee where it relates to historical remediation costs, including the removal of dangerous cladding.

The Committee is firmly of the view that these remediation costs should be borne by government and industry. Before the Bill is published, the Committee recommend that Government should announce how it proposes to fund historical remediation costs.

Building control

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. The Committee recommend that this choice is removed for all buildings and not just those that will fall to be regulated as higher-risk buildings.

Next steps

It is now up to the Government to improve the detail of the Bill. Once the draft Bill is finalised, it is expected that the Bill will be formally introduced into Parliament during 2021. Beyond that there is as yet 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.

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

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