Auteurs

Matthew Jones

Associé

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David Quinlan

Associé

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Rona Westgate

Senior professional support lawyer

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Natalie Pilagos

Senior counsel

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Daniel Hutchings

Collaborateur senior

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Auteurs

Matthew Jones

Associé

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David Quinlan

Associé

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Rona Westgate

Senior professional support lawyer

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Natalie Pilagos

Senior counsel

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Daniel Hutchings

Collaborateur senior

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18 mai 2018

Hackitt recommends new regulatory regime for high rise residential buildings

Dame Hackitt in her final report released on 17 May 2018, Building a Safer Future, makes 53 recommendations. At the heart of the report are the principles for a new regulatory framework to drive cultural change and improve building and fire safety. Her recommendations, if adopted, seek integrated systemic change, will require legislative reform and will take time to deliver. We look at the key proposed regulatory duties.

What do you need to know?

  • The proposed regulatory regime will apply to new and existing high rise residential buildings over 10 storeys
  • A new Joint Competent Authority (JCA) is proposed to oversee better management of risks in these buildings
  • New responsibilities for clients, principal designers, principal contactors and building owners will be introduced

What buildings will be caught?

The report focuses on new and existing high rise residential buildings over 10 storeys (HRRB), but also applies to the refurbishment of such buildings. However, the report anticipates that the new regulatory regime could in time be extended to apply more broadly to low-rise residential buildings and institutions where people sleep, such as hospitals, care homes, prisons, hotels, student accommodation and boarding schools.

Regulatory oversight

Central to the proposed regime will be the new Joint Competent Authority (JCA) to oversee better management of risks in these buildings. The JCA will comprise the local authority building control, fire and rescue authorities and the Health and Safety Executive. Key responsibilities of the JCA will be to:

  • create a database of all HRRBs and key duty holders for those buildings
  • undertake a series of Gateway Point interventions and
  • conduct regular case safety reviews with building owners during occupation.

Gateway Points

The report sets out three proposed Gateway Points where JCA approval will be required before work can proceed or occupation commence. These are:

  • Permission to use land the JCA should consult with the local planning authorities and must be satisfied that the planned building will be accessible by the fire services. This process should also apply where planning permission for another building in the near vicinity is sought.
  • Start of Construction – "Full Plans" approval by the JCA will be required prior to construction. This will involve an assessment of the Full Plans showing that key building safety risks are understood and will be managed and that the design will meet Building Regulation requirements.
  • Start of Occupation – JCA permission will be required prior to occupation. The JCA will need to be satisfied that the design intent has been followed (or that changes are documented and justifiable) and that the completed building meets all key building safety requirements. All key documents, which form part of the "golden thread of information", must be handed over. The building owner must also have completed a pre-occupation Fire Risk Assessment and a resident engagement strategy must be in place. For new builds, the JCA will agree the appropriate cycle of safety case reviews at this point.

Construction: New accountability for duty holders

The proposed regulatory regime seeks to enforce new duty holder responsibilities for building safety in a similar manner to the way that the HSE has applied the CDM Regulations 2015. Building safety must be considered up front and prioritised throughout.

Clients will need to ensure that they understand how their buildings are procured. Both principal designers and principal contractors will also be allocated duties that focus on key safety aspects. For example, a client will need to ensure that a digital record of the building as-planned and as-built is established and that a Fire and Emergency File setting out fire strategy for the building and its residents is initiated. The Fire and Emergency File will be updated and finalised in much the same way as the Health and Safety File under the CDM Regulations. The digital record of building work and the Fire and Emergency File will form part of the "golden thread" information that will need to be handed over on completion. The client will also need to confirm that relevant Building Regulation requirements are met.

Full Plans showing the design in respect of fire and structural safety which are required for Full Plans approval will be the responsibility of the principal designers. A Construction Control Plan showing how change in respect of building safety will be controlled and recorded is also suggested. This will be the responsibility of the principal contractor and is to be handed over to the JCA prior to occupation.

The report also recommends that significant changes after the Full Plans sign-off stage should be notified to the JCA for consideration prior to such work commencing. These checks should provide a clear picture of what has changed since construction began, ensure that value-engineered changes still result in a safe building, and allow fire and rescue authorities to assess fire-safety at completion.

Golden thread of information

The report recommends that a "golden thread of information" should be established at the start of the construction cycle. This "golden thread" information is to be handed over to building owners who will then be responsible for maintaining this information throughout the life cycle of the building. Where building ownership changes, the "golden thread" information should be transferred. This practice should enable owners, and subsequent building owners, to manage building safety better, and will ensure that up-to-date information is also be available for the relevant Gateway Point and case safety reviews.

Occupation – a new duty holder

A new duty holder is recommended for the occupation and maintenance phase of the building with accountability for the structural and fire safety of the whole building. The suggestion is that this role is undertaken by the building owner or superior landlord. One of the key responsibilities of this duty holder will be to maintain the "golden thread" information, for example, by updating the Fire and Emergency File and the digital record by adding records of the fire assessments and testing routines.

In addition, the duty holder will need to

  • take such safety precautions as may reasonably be required to ensure building safety risk is reduced so far as is reasonably practicable
  • conduct safety case reviews with the JCA
  • provide residents with building safety information and put in place a resident engagement strategy
  • inform residents of their rights and responsibilities. Residents will also be able to escalate concerns of fire safety to an independent statutory body

The duty holder can nominate a building safety manager to discharge responsibility for certain tasks, but the duty holder will remain accountable. The duty holder and building safety manager must be notified to the JCA and the residents. Where there are multiple owners, all must retain the responsibility of the duty holder role.

Safety case reviews

The duty holder will be required to present safety case reviews to the JCA at regular intervals (usually every five years) to demonstrate that risks are being managed effectively. The JCA may inspect the building if necessary. Safety case reviews can be requested more frequently by the JCA if a significant refurbishment is planned or significant concerns have been raised.

Safety case files should include information on the building management systems relating to fire and safety, maintenance records, fire risk assessments, the resident engagement strategy, the updated Fire and Emergency File and the updated digital record.

Duty holders for existing buildings would need to undertake an information gathering exercise to build the data records so as to enable the safety case review to take place

Sanctions will be available for the JCA to incentivise compliance by duty holders. Proposals include statutory notices, fines and criminal sanctions.

Other changes

Other proposed recommendations include a single regulatory route for building control of HRRB. These buildings will be regulated by the JCA and Local Authority Building Control. Approved Inspectors will only be able either to work with clients to provide consultancy and verification services to help them meet the key Gateway Points, or to provide extra capacity to the JCA or local authorities where needed.

Conclusion

This briefing note sets out key issues on our initial review of the report and we anticipate further industry input in response to the report's recommendations.

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