As we highlighted in our recent insight, the long-awaited Grenfell inquiry phase 2 report (the Report) was released on 4 September 2024. Spanning seven volumes and more than 1,700 pages, the Report offers an in-depth analysis of the evolution of building regulations, fire safety standards, and the broader fire testing landscape. The Report makes 58 recommendations, many of which are aimed at addressing the regulatory deficiencies which led to the tragedy.

It is important to understand the context of the Report, and where it fits into the response to the Grenfell fire. Since then, there has been published Dame Judith Hackitt's 2018 Independent Review of Building Regulations and Fire Safety as well as Phase 1 of the Inquiry, in response to which Parliament passed the Building Safety Act 2022 (BSA). The BSA and its related secondary legislation have implemented a number of reforms affecting the procurement, design, construction and the occupation of buildings.

Focusing on the design and construction phase, key reforms (described in more detail below) include the establishment of:

  • a new definition of higher-risk buildings (HRBs) and a more stringent building control regime requiring them to pass through three "Gateways";
  • the Building Safety Regulator (BSR) who oversees the new building control regime for HRBs (as well as the occupation phase – although not the focus of this article); and
  • a dutyholder and competence regime which applies to all "building work" in England, i.e. to any project that requires building regulations approval, with only limited exceptions.

However, the Report cautions that the measures established by the BSA only scratch the surface and represent only a fraction of the reforms needed to prevent another Grenfell. Notably, it remains the case that arrangements under which the construction industry is regulated are "too complex and fragmented" which echoes the comments made by Dame Judith Hacket in her report.

In this article, we examine in more detail some of the Report's key recommendations relating to the design and construction phase, and how these might impact the current regulatory framework as recently established by the BSA.

Redefining ‘higher-risk buildings’

Under the BSA, a "higher-risk building" (or HRB) is defined as one that is at least 18 metres tall (or has seven storeys) and in England, contains at least two residential units. (In Wales only a single residential unit is required to meet the definition of a HRB ). During the design and construction phases, this also includes care homes and hospitals that meet the height threshhold.

The Report calls for a review of this definition, criticising what it describes as the "arbitrary" focus on the height of a building. It considers that other critical factors such as the building’s use and the presence of vulnerable individuals are "more relevant" and calls for the definition of HRBs to be "reviewed urgently".

It remains to be seen how such a change in definition would operate in practice, particularly if the definition is to be dependent not only on defined criteria such as building height, but also on subjective and potentially shifting criteria such as the nature of the occupant of any given building. Changing this definition would have significant ramifications for the industry, likely increasing the number of buildings classified as HRBs and the corresponding workload for the regulator.

In addition, for those with responsibility for HRBs during the occupation phase, clarity will be vital in light of the more stringent obligations imposed on Accountable Persons / Principal Accountable Persons: please get in touch if you would like further advice on the implications of this for your building.

A single construction regulator to replace the building safety regulator (and others)

One of the most notable recommendations is for the creation of a single, independent "construction regulator," accountable to the Secretary of State. This regulator would have sweeping responsibilities, including overseeing the regulation, testing, and certification of construction products, accrediting fire risk assessors, and licensing contractors working on high-risk buildings. It would also maintain a publicly available library of fire safety data and act as a centralized body for reporting and regulatory oversight.

While consolidating these functions under one regulator could streamline the regulatory framework, many in the industry are questioning the feasibility, or potential unwieldiness, of such a broad mandate. It remains to be seen whether a single entity could manage everything from product testing and certification to building regulations effectively.

Dutyholders and competence

One of the reforms that has already been implemented by the BSA is the creation of the dutyholder and competence regime, set out in new Part 2A of the Building Regulations. We described the regime, which came into force on 1 October 2023, in our previous insight. It is intended to ensure that all those involved in the commissioning, design, construction or refurbishment process - of all buildings to which the building regulations apply - will have formal responsibility for compliance with building regulations.

It therefore creates new dutyholder roles mirroring those appointed under the Construction (Design and Management) Regulations 2015 (CDM 2015), i.e. for the Client, Designer, Contractor, Principal Designer and Principal Contractor – and imposes specified duties and new competency requirements on those dutyholders.

A number of the measures called for in the Report would require additional statements or undertakings to be given by certain dutyholders, when constructing or refurbishing HRBs (as described further below).

The Gateway system

The BSA also introduced a three-tier "Gateway" system with three "Gateways" that HRBs must pass through during design and construction:

  • Gateway One – Planning (in force from 1 August 2021).
  • Gateway Two – Before construction begins: at this stage applicants will have to demonstrate how the proposals comply with building regulations requirements - including information about how the new dutyholders' competence, golden thread and reporting requirements will be met.
  • Gateway Three – Post construction, pre-occupation: The completion certificate phase at which handover of the relevant documents to both the BSR and the building owner takes place. A building cannot be registered or occupied until the Gateway Three process has been completed satisfactorily.

As noted, the Report makes a number of recommendations which would strengthen the respective Gateways by requiring further statements from dutyholders or more frequent checks of key documentation. Unlike some of the more fundamental and sweeping calls for reform in the Report, in our view, a number of these recommendations could be implemented via secondary legislation to the BSA. It is therefore possible that such changes may well be made by way of amendments to the secondary legislation in the near future.

We examine the key recommendations affecting the Gateways below:

  • Contractors

    The Report recommends that a licensing system be introduced for those proposing to undertake work on HRBs, which would be implemented by the construction regulator and apply to principal contractors wishing to undertake construction or refurbishment of higher risk buildings. The Report also recommends that any application for building control approval for the construction or refurbishment of a HRB (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations.

  • Architects/Principal Designers

    Secondly, the Report recommends creating a new statutory requirement for Gateway 2 applications to be supported by a statement from a senior manager of the principal designer that all reasonable steps have been taken to ensure that on completion the building that is designed will be as safe as is required by the Building Regulations.

  • Fire Safety strategies

The Report also recommends making fire engineering a recognised and protected profession and that, further, for higher risk building, a fire safety strategy, produced by such a registered fire engineer, must be:

  1. Submitted with building control approval applications (at Gateway 2); and
  2. Reviewed and resubmitted at the stage of completion (Gateway 3).

The Report places particular emphasis on the needs of vulnerable individuals, recommending that fire safety strategies account for the additional time and resources required to evacuate them safely.

Building control reform

The Report also addresses industry perception of 'building control', noting that there has been a "serious misunderstanding" by many of those involved in construction projects who traditionally regarded building control "as a source of advice and assistance" and not as a body of controls which needed to be enforced to ensure safe buildings. The Report also condemns the building control bodies themselves, who "preferred to cooperate with applicants to enable proposals to be approved rather than to enforce the Building Regulations rigorously".

The Report acknowledges that the process of improving the regulation of building control has started – but notes that the proposed "super-regulator" will be expected to continue this. More drastically perhaps, the Report also notes the existence of an underlying 'conflict of interest' within the industry as a result of inspectors having a commercial interest in acquiring and retaining customers which is directly at odds with their performance as 'guardians to the public interest'. As a result of this conflict of interest and the need for building control reform, the Report recommends that the Government appoint an independent panel to consider whether it is within the public interest for those who have a commercial interest in the process to also be those who perform building control functions – and whether all building control functions should instead be performed by a national authority.

The building control regime in England and Wales has been subject to substantial change in the past year, with the phasing out of the Approved Inspector role and the creation of the new role of Registered Building Control Approver from 6 April 2024 (subject to transitional provisions). The industry is still adjusting to this change. Given the breadth of this further recommendation, we anticipate that, if the Government chooses to implement this recommendation, it is likely to be the subject of longer-term consultation and reform.

How will this impact you?

The Grenfell Phase 2 Report is a call to action for the construction industry. Its recommendations seek to address the systemic failures that contributed to the Grenfell tragedy, but they also signal the need for a broader conversation about building safety in the UK. It remains to be seen whether and in what way the Government will implement the proposed recommendations and on what timescale. The Government has indicated that it intends to respond in full to each of the 58 recommendations in the Inquiry within six months, which suggests further significant change and new legislation may well be on the horizon.

Our leading Building Safety team advises on a myriad of issues relating to building safety. With expertise drawn from a specialist cross-discipline team, we provide practical, easy-to-understand advice, with clear recommendations.

If you have any questions about the issues raised in this article, please get in touch with Gemma Whittaker, Jessica Tresham or Sean Garbutt.