The UK government has published plans to overhaul the regulatory system for building safety in England, including the introduction of a new building safety regulator. Going further than the recommendations in the review on building safety published by Dame Judith Hackitt in the aftermath of the Grenfell tragedy, the new regime would apply to all new multi occupied residential buildings (new builds, major refurbishments and existing multi occupied residential buildings) over 18m, or six storeys, in height.
Hackitt had suggested new rules for buildings over ten storeys, but the new regime brings it into line with the December 2018 ban on the use of combustible cladding on external walls of new high rise buildings. Additional buildings where multiple people sleep, such as prisons, hospitals, supported and sheltered housing, boarding schools and student accommodation, may also be included.
Central to the new regime is the creation of the new regulator, which will have overall responsibility for oversight of building safety and the wider building regulatory system, supervision of the new regulatory regime for buildings in scope of the new regime (including mandatory occurrence reporting) and oversight of work to drive increased competence of professions and trades working on buildings, backed with significant powers to impose civil and criminal penalties.
Tasked also with providing industry guidance, as well as improvement advice, the government aims to harness the insight and experience gained by the new regulator to drive forward advances in building safety. Those building or carrying out significant refurbishment of new residential high rise buildings would be required to seek approval from the new regulator at three ‘gateways’ or stages: planning permission; pre construction; and pre occupation.
Owners of existing buildings will be required to seek pre occupation approval from the new regulator on a phased basis, whilst a building’s safety during occupation will have to be demonstrated via a proposed ‘safety case’ regime. Periodic safety case reviews will be required throughout the life of a building to demonstrate how fire and structural risks are being kept to a minimum.
As with the Construction (Design and Management) Regulations 2015, the proposals seek to place responsibility in the hands of those in control of the different phases of a building’s life. This would create, for example, five categories of ‘duty holder’ during the design and construction phase, who will have new responsibilities for fire and structural safety of the building: client; principal designer; designer; principal contractor; and contractor.
Once the building is occupied, an ‘accountable person’ must be appointed to ensure its ongoing fire and structural safety, and to proactively engage with residents. This will usually be the building owner or a management company. The accountable person – and building safety managers appointed by them – would have to be registered with the new regulator.
Buildings within scope would have to be registered with the new regulator, and a safety case and building safety certificate provided. These must be reviewed every five years. Failure to comply with the conditions in the certificate would be a criminal offence. Duty holders will also be responsible for keeping vital safety information up to date about how the building was designed and built, and is managed.
This so called ‘golden thread’ of information will be stored electronically for the entire life of the building. The government is likely to require that this digital record complies with building information modelling (BIM) standards. Seeking to drive up standards, new competence requirements would apply to all of the proposed new roles, as well as to a wider range of professionals and tradespeople. The new regulator will hold and maintain a register of competent principal designers, principal contractors and building safety managers.
For the new regulator to deliver on the aim of ensuring people are safe – and feel safe – in their homes by improving building safety for buildings in scope, the government recognises that it must have teeth, and is therefore proposing a detailed enforcement regime to drive compliance. Where informal reinforcement of required operating standards and guidance fails, the following powers will be available:
• stop notices (preventing construction)
• improvement notices (requiring remedial action to remedy breaches of building safety law)
• prohibition notices (preventing access to all or parts of a building)
• imposition of conditions, or revocation of building safety certificate
• civil sanctions
• criminal prosecution, with penalties akin to health and safety law
The aims of the new building safety regulator are to be applauded. Whilst its functions have been identified in broad terms, the detail is still to be fleshed out, as is its constitution with an explanation of how its role will sit with that of other regulators such as the Health and Safety Executive. Particular care will have to be taken to ensure that the new regulator does not simply add another layer of complexity to an already complex regime.
Its proposed functions are not only wide ranging, but will also demand access to specialists in multiple disciplines. Proper resourcing from the outset will be crucial if success is to be achieved. With funds for other regulators already stretched, however, partnership and collaboration with the private sector will be required. The devil will be in
The consultation ran until 31 July 2019, and during the same period the government had also issued a call for evidence on the Regulatory Reform (Fire Safety) Order 2005 to ensure it is ‘fit for purpose for all regulated premises’
Laura White is an associate in the health and safety team at Pinsent Masons