Government launches consultation on building safety regulation

The Government launched its Consultation on its plans to take forward the Hackitt proposals on building safety reform. The changes proposed, if implemented, will significantly overhaul the current building safety system during construction and occupation ensuing more stringent accountability over the life-span of the regulated buildings.

The Consultation calls for a wide-ranging reform of building safety and many of the recommendations - such as an increased role for duty-holders aligned to the CDM Regulations, a new regulator, gateway points for regulatory scrutiny and an enhanced sanctions regime – are familiar having already been set out by Hackitt.

However, one of the key new points is the scope of the proposed new regime. The current plan is to include multi-occupied residential buildings of 18 metres or more (around 6 storeys) in place of Hackitt's recommendations to include higher risk residential buildings or 30 metres or above (around 10 storeys) which will mean that many more buildings will be brought into the new remit.

Continue reading to see our summary of the Consultation.

Which buildings will be affected?

The proposed regulatory framework will apply to:

• new builds, major refurbishments and existing multi-occupied residential buildings of 18 metres or more
• potentially, additional buildings where multiple people sleep, such as prisons, hospitals, supported/sheltered housing, boarding schools and student accommodation.

Views are also being sought as to the best way to deal with potentially overlapping regimes for regulation of multi-occupied buildings under the parallel Call for Evidence: Regulatory Reform (Fire Safety) Order 2005 which focuses on higher-risk workplaces, mixed use buildings over 18 metres and multi-occupied residential buildings under 18 metres.

Building Safety Regulator

Central to the proposed regime will be a new Building Safety Regulator with a wide remit. The Building Safety Regulator will:

• oversee the new regulatory regime, industry competence, and a new mandatory occurrence reporting regime
• maintain lists of duty holders and buildings under its remit
• undertake a series of gateway interventions
• issue building safety certificates
• conduct regular case safety reviews for buildings during occupation
• enforce compliance

Duty holders

As suggested by Hackitt, the proposed new regime will be aligned with the CDM Regulations.

The five duty holders – the client, the principal designer, the principal contractor, designers and contractors - will have new responsibilities to demonstrate that buildings have been designed and built in compliance with building regulations and to show how safety risks are being actively managed.

The additional responsibilities placed on the principal designer and principal contractor will include an obligation to sign a declaration that the relevant building complies with the building regulations. This is a significant change and is likely to lead to increased scrutiny (and cost) through the build stage. For example, as part of the gateway process, the principal designer will need to develop full plans and 3D models with the client, and the principal contractor will need to keep up to date a construction control plan detailing how compliance with the building regulations is being maintained throughout construction. Deviations from the original full plans will need to be recorded, and notification of major changes affecting the structural or fire safety measures made prior to the work taking place.

A new duty holder is proposed for the occupation phase. This duty holder, the accountable person, will be legally responsible for the fire and structural safety of a building once occupied. The accountable person will:

• appoint a competent building safety manager to carry out the day to day functions of ensuring that the building is safely managed
• register buildings with the Building Safety Regulator
• conduct regular safety case reviews prior to and during occupation

Competency for duty holders

An overarching competency framework for the principal designer, principal contractor and building safety manager seen as having pivotal roles which require additional skill sets is being considered. This is part of the initiative to increase competence which will be led by an industry-led committee appointed by the Building Safety Regulator.

Gateway points

New builds and major refurbishments of regulated buildings will require approval from the Building Safety Regulator at three gateway points before work can proceed or occupation commence. Buildings already under way would be required to go through the next relevant gateway process.

The three gateways are:

• Grant of planning permission – prior to the issue of planning permission, the proposal is that fire and rescue authorities should be consulted to ensure early consideration of fire safety. In contrast to the later gateways, gateway 1 will apply to buildings over 30 metres.
• Commencement of construction – Building Safety Regulator approval will be required before construction can commence. This will require an assessment of full plans, a 3D digital model, the Fire and Emergency File and the Construction Control Plan.
• Occupation – at completion and prior to occupation, the Building Safety Regulator will need to have seen original plans and any deviations, the digital as-built record; together with updated versions of documents required at gateway 2. The principal designer and principal contractor will need to sign a declaration to confirm compliance with the regulations.

Registration and building safety certificate

Prior to occupation, buildings within scope must be registered with the Building Safety Regulator and a building safety certificate secured. Registrations will need renewing every 5 years.

The building safety certificate will identify the accountable person and the building safety manager which will need to be displayed in a prominent part of the building.

Safety case reviews

Safety case reviews will be undertaken through-out the life span of a building and at the gateway points to demonstrate to the Building Safety Regulator how fire and structural risks are being managed. The safety case will be periodically reviewed while the building is in use (typically every 5 years).

Safety cases will also need to be produced for existing buildings in scope. As a first step, the accountable person may need to conduct an evidence gathering exercise to build the data records.

The Consultation acknowledges that safety case reviews for existing buildings may uncover issues which need remedying, and which may require one-off unpredictable costs. Views are sought as to how those costs should be met though there is a desire to reduce the cost impact on leaseholders and the impact on the insurance and mortgage market.

Golden thread of information and digital standards

Duty holders will be responsible for keeping a golden thread of information up to date and in digital format, to be handed over at each gateway point. The golden thread is the key information about the building from design to occupation. The Government is likely to mandate the use of Building Information Modelling for this golden thread.

Residents

As suggested by Hackitt, residents should be given a stronger voice and the accountable person (through the building safety manager) must proactively provide residents with the information they need and engage with residents through a Resident Engagement Strategy. The Resident Engagement Strategy will also form part of the golden thread of information.

Residents will be able to escalate concerns to the Building Safety Regulator.

Enforcement and sanctions

A tougher enforcement regime is proposed with greater powers under a three stage approach of discussion and guidance, proactive intervention, such as issuing of stop notices, and enforcement action by the Building Safety Regulator.

Enforcement action could include formal orders, revocation of building safety certificates and new criminal sanctions against duty holders and accountable persons for carrying out work without the necessary permission, failure to register buildings, or breach of building safety certificate conditions. There is also a proposal for faster enforcement through fixed and variable penalties for more minor breaches.

Significantly, there is also a proposal to extend the period for enforcement from the current two-year period to six or possibly ten years, and that this time period start from the completion of non-compliant work, or if a latent defect from the discovery of the defect and that this be extended to all buildings.

A potential new right of civil action where breach of building regulation causes damage (including the death or injury of persons) is also proposed.

Other changes

Areas where there still needs to be more clarity are round the use of Approved Inspectors. The Government simply state that policy work is also underway to investigate how the Government can remove choice in the use of Approved Inspectors or local authority building control so as to remove perceived conflicts of interest but still retain the Approved Inspector capacity.

A separate regime is also proposed to regulate construction products to make manufacturer's responsibilities clearer.

Conclusion

These proposals, if implemented in full, will introduce a fundamental change in building and fire safety regulation.

Although the scope of the new regime is still not clarified, it is clear that regulatory change is on the horizon for multi-occupied residential buildings, and potentially for a far wider range of buildings where multiple people sleep.

Building owners, developers, contactors and designers will need to start thinking about how best they will be able to comply with the proposed duty holder regime and gateway process. We will provide further updates over the coming weeks.

The Consultation and call for evidence closes on 31 July 2019 after which the Government will analyse the responses.