Managing building safety – next steps for occupied higher risk buildings

Rachel Kerr: Okay let us get going. So hi everyone thank you to everyone for joining us today for this webinar discussion on managing building safety where as you know we will be focusing on the inoccupation phase for higher risk buildings. I am Rachel Kerr, I am a partner in the commercial development team and I helped to head up the real estate building safety working party here at Gowling WLG.

I am going to chair today's webinar and hopefully answer lots of the questions that you are currently considering.

So without further ado I think it is time for me to briefly introduce the other panel members who will be joining in our discussion today.

We have got Gemma Whittaker, she is a partner in our non-contentious construction team. She co-leads Gowlings' cross disciplinary building safety practice and she therefore has a wealth of knowledge on all sorts of building safety topics.

We have then got Danielle Klepping she is a principal associate in our commercial contracts team who as well as having experience across a broad range of sectors has specific expertise in the living sector and is well versed at looking at documents like PMAs.

And then last but not least we have got Natalie Barton-Howes who is a principal associate in our health and safety regulatory crime team and she focuses on helping clients to manage safety, compliance and navigate enforcement action and so she will be able to talk more about the potential pitfalls.

So hopefully we have got sort of the full spectrum covered for today's discussion and before I handover to them and they can share a bit more about what they do I think it is worth taking a minute or two to just consider the focus of today's webinar which as you know is the inoccupation phase for higher risk buildings. The definition of higher risk buildings we will come to and touch on in the chat.

I think it almost goes without saying that building safety is a really wide and complicated topic and between the four of us we share the feeling that a lot of work is going into interpreting really important legislation which we feel is often untested and which feels like it is changing all the time and can make the topic seem dense and potentially difficult.

So why have we decided to focus on the occupied phase now and what do we want to try and get out of today's session. Primarily we think it is the right time to move the conversation along to the inoccupation phase and we think that is because we are responding to the increasing numbers of questions we get in from clients, so you guys.

We are very conscious that there are lots of different people watching with different roles and who might be at a different stage of what we are going to refer to as the building safety journey but whilst there remains plenty of questions around things like impact on construction, the various gateways, registration requirements, our view is that people have an increasingly broad understanding of phase and that lots of people are grappling with or you are perhaps beginning to grapple with how to remain compliant from an asset management perspective.

So in today's chat there is definitely an element of looking forward to next steps as the title to the webinar suggests and an element of horizon scanning. So hopefully that covers the timing.

In terms of what we are doing and aiming to do today I have already eluded to this that we have set this up as a discussion between the four of us. I think it is important to reiterate that and that we are having a conversation about the various things that we are seeing on our desks as opposed to just presenting to you or you know providing specific targeted advice. And on that theme given the nature of today's topic I think it is really important for us to say we do not know that we are going to have all of the answers to all of your questions in today's session. But what we would like is for you to leave this webinar having an awareness of the sorts of topics we are dealing with and so that you feel armed with the information.

You need to frame the questions you want to be asking and the sort of questions that you want to be seeing answered and answering in respect of high-rise buildings. So in the next forty minutes or so we are going to use the experience we have accrued to date to explore the key aspects of the inoccupation phase by highlighting the approaches we are seeing across various living sectors, awards compliance with the relevant legislation as well as considering some of the pitfalls you will fall into possibly if you fail to get your higher-rise building ready and compliant.

So with those outcomes in mind I think it is the right time to get into the detail and to kick us off I think we will look at that shift in focus towards the occupation phase so if I come to you Gemma, obviously you are our construction lawyer, you have spent a lot of time in the last few years advising on the implications of the Building Safety Act around designing construction of new buildings but we are obviously looking at that shift towards inoccupation. What have you been seeing?

Gemma Whittaker: Yeah, I think it is fair to say the construction industry has really been at the forefront of the changes, I think coming out of Building Safety Act. There is still a lot of work going on within the construction industry, getting to grips with what that means in practice, not to mention seeing how engagement with the building safety regulator through the gateway process for new works is going to play out, but we have definitely seen over the past 12 months or so a sharper focus being paid to the occupation phase for higher risk buildings. So, those with existing buildings have really been at the leading edge of that, so with registration becoming mandatory just over a year ago businesses with those existing higher risk buildings in their portfolio have had to invest a lot of time in pulling together relevant information, putting together safety cases and really making sure that everything is in place for the occupation phase and now we are starting to see that engagement with the building safety regulator where safety cases are being called in and I do think there are going to be a lot of practical lessons learned from those early experiences about what it is that the BSR is looking to see. So, the legislation is not completely prescriptive in terms of exactly what some elements of the safety case has got to cover, we sort of gathering information as that process goes on to understand exactly what types of things building safety regulator is asking about.

From a more specific construction lawyers point of view on the occupational phase, we have been spending a lot of time looking at the golden thread, so document handover for project, particularly where they were already in flight when the regulations came in to force last year, so they might not have gone through the new construction gateway process but you still need that whole golden thread to be put in place for the occupation phase and also where buildings are being acquired or refinanced, what are purchasers and lenders looking to see in order to be satisfied that the duties are being complied with and that those all important golden thread documents are all in place. Of course, along side that we have seen a real shift towards providing advice on ongoing compliance around the management of buildings once they are occupied, so that is really where Danielle and Natalie have come in.

They are really able to combine their existing specialisms with an in depth knowledge of the BSA to help clients understand what those duties are during the occupation phase and then take that a step further by putting in place appropriate management arrangements to support and then evidence that compliance.

Natalie Barton-Howes: That's right, just in terms of where I am focusing on, I deal with all areas of safety management and compliance and the potential regulatory risk and risk of enforcement action, so one of the challenges we are seeing in my team is a confusion sometimes as to when and which duties apply, in which circumstances, so obviously you have got your fire safety duties, you have got the health and safety regime and you have got this new layer of compliance of building safety and all of these things can overlap and interplay with each other and also all of them boil down to effectively managing risk, so being able to demonstrate compliance under the different regimes can sometimes be a bit of an exercise in trying to understand where and what scope of which duties apply, and also just how to do it effectively, that is a real challenge because are you integrating these new duties in to your existing systems and there just really needs to be some clear guidance on the approach really.

Rachel: I smiled on that answer because you used the word "confusion" and I think a lot of people who are watching probably agree that it is quite a confusing area of law. I think we will touch on that more as we go through the conversation, but I wonder if, just before we continue, it would be helpful if we could perhaps have a board overview of what we mean when we are talking about building safety during the occupation phase?

Danielle, I think that is probably one for you?

Danielle Klepping: Yeah, absolutely. I mean it does cross over a little bit with fire safety because when we are talking about building safety, we are talking about risks from the spread of fire, but we are also talking about risks from structural failure and both of those, very much in the context of the safety of people in and about a building.

You mentioned earlier that we had sort of outlined what we are talking about in terms of higher risk buildings, so we are talking about those risks to those people in the context of buildings that are over 18 metres, or seven storeys with at least two residential units and there are other layers to that that I will not go in to now, but that is broadly what we are talking about today when we talk about higher risk buildings.

I guess going to the specifics about the occupation phase and what we mean by building safety duties in that context… we are talking about the duties that fall on principle accountable persons, or accountable persons in relation to those higher risk buildings once they are occupied. So you have got the building that is built and you have got residents coming in to it.

Broadly, they are found in part 4 of the Building Safety Act and there is a lot of regulations that supplement that as well. To give you the high level areas they cover, you start with assessment and management of risks, so building safety risk, there is registration of higher risk buildings, there is information requirements, reporting requirements and then there is a chunk of duties around resident engagement as well.

Going in to a little bit more detail around some of those, accountable persons have general duties in section 83 and 84 of the Act to show that they have assessed any building safety risks in relation to the relevant higher risk building and specifically that they have taken all reasonable steps to manage those risks, by that we are talking about steps to avoid them happening and steps to minimise them and reduce the severity of them if they do.

Then as Gemma mentioned, we have this requirement to register higher risk buildings so that the regulator is aware of them and can monitor overall compliance with of duties we are talking about. That came in to force just over a year ago and there is a specific process that you have to follow to register your building which involves submitting some certain key information about the building to do with things like its use and also things like how many staircases it has got, list in the regulations around what you need to put in that.

There is also a list in the regulations around some of these information requirements where you start to get into another area that Gemma touched on, which is the duty to have a building safety case report. That report is supposed to pull together some of the steps that you will have taken to assess and manage risk so it is supposed to set out what you have done in terms of investigating the possibility at building safety risks at the building and so there is a list within the regulations of areas that you are supposed to touch on and it includes things like what specialist equipment you have got within the building and policies for maintaining and testing that.

That also leads on to the golden thread which I am conscious we have touched on with a view to the fact that that starts in the design and construction phase. The idea of the golden thread is that there is a single source of truth for the building, so it is this idea that you have all this valuable information that starts in design and construction and then is supposed to be maintained like an unbroken thread all the way across the lifecycle of the building. I cannot quite remember what Dame Judith Hackitt's famous quote was, but that is basically what it stems from and so there is a lot of detail in the regulations around what constitutes the golden thread and how that needs to be managed, maintained, handed over as Gemma mentioned, not just at the construction stage but if you sell or do anything with the building and also how it needs to be made accessible to certain entities, including emergency services.

There are some other information requirements in there around changes of accountable persons, which I will not go in to huge detail of, but there are requirements around information to residents which brings us on to resident engagement, which I mentioned. There is a requirement to have a strategy for engaging with your residents and getting them to talk to you about building safety issues. There is a requirement to have consultation when that is prepared and also when it is updated and to consider any feedback that you receive through that process and there is also some linked requirements around complaint systems and making sure that the complaint system allows for complaints about building safety specifically.

I mean that is a lot to get to grips with and that is very much a quick tour of some of the main duties. There are obviously things in there I have not mentioned like the building assessment certificate process and some of the provisions that support accountable persons, so yeah, there is a lot.

Rachel: I mean suffice to say lots of requirements, lots of detail for people to get their heads around and actually a lot of those requirements need balancing in a certain way. I think Danielle, if you do not mind me sticking with you, just for now, because you look at commercial contracts, day in day out, so you are used to negotiating them.

In terms of those requirements and how they are balanced between different parties, what are you seeing right now? Particular areas of focus?

Danielle: So you have obviously mentioned that I am part of the commercial contracts team here at Gowling and I appreciate that might seem a bit of an unusual fit for a webinar about building safety.

My day to day involves looking at lots of real estate and living sector service contracts so I have encountered building safety when looking at things like consultancy terms and conditions. We have had queries around tech providers and data protection enquiries but also a lot of management agreements and management appointment queries. You mentioned earlier PMA's, it's very much the kind of thing that I deal with on the day to day.

I would say that at the start of the year we were seeing a lot of queries and enquiries about building safety case reports. Principal accounting persons are really looking for support with pulling those together and looking to appoint third parties to help with that and then asking about the terms of those appointments. We are still seeing some queries about that and we are seeing that where we perhaps have people that are a little bit earlier on in their building safety journey. We are also seeing it where there are more complicated developments because there were some regulations that followed the Act and included a bit more clarity about what we mean by a building in the context of a higher risk building and that has lead to some clients who have say, multiple structures or structures that are split into sections asking a few queries and that sort of stemming to questions about, do I need more than one safety case report here.

I think at the moment I am seeing more interest and engagement around residence and these residence strategies that we talks about a little bit. I am seeing a push on management agents to draft those strategies because they have the resident relationships, but I am also seeing clients actively looking for managing agents to suggest ways to get the residents to really engage. Not just read it and ignore it. That is all feeding in to discussions where you have got a new building about services in the management agreement that help with this compliance area and also a continuation of people looking to vary existing management agreements to include those services. So lots of things going on.

Rachel: Lots going on and you touched again didn't you on people being on this building safety journey and something that I have been asked about recently touches on that. It is about revisiting the registration in the first place and whether people need to go back and look at that now that they are in more of the weeds around the detail and the administration things.

Gemma would you say that people are revisiting the registration process at all?

Gemma:  Yes I think it is fair to say we are seeing a bit of a trend of clients looking back at those registrations that might have been done in a bit of a flurry in 2023 when the registration deadline was upon everybody, with the consequence of criminal responsibility if you have not registered by a certain date. Those registrations were rightly put though in time perhaps without taking legal advice to check that they quite aligned with the legislation and so some clients are looking back at those now and questioning, does that registration look right in light of what we know about the building and what we also know about the legislation and I think one of the main reasons for that is that some of the registrations did not necessarily take into account this concept that Danielle leaded to of independent sections. So where you have got that mixed use structure and complex building, you might have a structure that can be divided down into more than one building for the purposes of the legislation so a lot of care needs to be taken with this because of specific criteria that have to met but if those criteria are met then you can sometimes have an independent section that is purely commercial that could well fall outside of the higher risk building scope. So that is important to know and understand, both for the purposes of the occupation phase duties, but also for the purposes of which building control process are you going through for any future works to that building. Is it your more traditional building control process or is it your gateway process with the building safety regulator.

Rachel: Actually, now that you have mentioned building control it is probably worth flagging isn't it that you have got all of these management duties and obligations around high risk buildings that we have talked about but that does not supersede other pieces of legislations or schemes and it is really important not to forget about that overall building control process.

Gemma: Yes, that is right and I would say this as a construction lawyer but we are focusing today on management of building safety risks securing occupation once you have got an existing HRB that you have got residents in but I think it is really important that people who are managing those HRB's are really alive to the fact that that includes management of future works. So you cannot just forget about that gateway process once the building is built and in occupation. If you have got future works happening that gateway planning and building control process will apply to future works being done to that building as well as to the original creation of the higher risk building. So anyone involved in procuring those types of works needs to be aware of that fact and that they need to have processes in place to make sure that people carrying out those works are aware that they are working or designing for a higher risk building. Checking the competencies of the people that are being appointed to carry out those works and it also might mean building in some additional time for the process of putting the building control application through the building safety regulator.

Rachel: That is a helpful reminder, and I think if we assume everyone is doing that we are all compliant for the purposes of this chat. If we move back to in occupation phase I would be interested to know from you guys, what do you think some of the key challenges are for owners and managers of the occupied high risk buildings? What are you guys seeing?

Danielle: I will take that one. I think at the moment it is quite difficult to navigate the legislation. I think there are several challenges, and I think part of that is because of how the building safety act was implemented with all of the different regulations that sit behind it. So it is not just a case of looking at the specific provision in the Act. It is navigating which set of regulations supplement that. That is quite difficult. Some of the duties that we talked about are quite specific. Some of them are not. Where they are less detailed I think it can be challenging to be really sure of the what the expectations are. So to give an example, we could take the requirement around mandatory importing for example, so there is a requirement to have a system in place to report safety occurrences. Safety occurrences are very broadly defined as incidents that relate to the risk of fire or structural failure which if left unremedied could result in a significant number of deaths or a significant number of injuries. So one challenge is working out on a practical level what that actually means and thinking about what you actually have to report because what could be a safety occurrence is very wide. The Government guidance does give a bit more clarity on that. It tries to help. So in one of the papers that was published over the Summer about the reporting requirements, there are a few examples around things like defects in the building design that were perhaps caused by human error or software using incompatible or incompliant products. Incorrect insulation issues. So that is helpful, but it is not meant to be a conclusive list. We don't have any case law yet to sort of give us further clarity and yeah it can be difficult to make that judgment call as to whether you have got something you need to report I think.

Rachel: I mean we have already touched on confusion haven't we and there being confusion around some of this and I think one of the issues again the four of us are coming up against is that sort of mismatch between what the legislation says on one hand and then Government guidance but I think one topic we are trying to get to grips with at the moment is how much weight should be placed on the guidance as opposed to the legislation. Would you agree Danielle?

Danielle: Yeah, I think that is a key challenge at the moment as well because where the Government guidance does seek to help with some of those sort of those sort of grey areas. I think we have got a bit of a question mark now over how much reliance and weight we can put on that and that sort of stems from a case that went to Tribunal in July so it is called well the property in question was called Smoke house and Curing House. It related to a remediation order so on its face it doesn't necessarily seem relevant to your occupation phase but amongst other issues they did look at whether the property in question was a higher risk building and broadly the property was sort of six storeys it seemed included about 45 flats over five of those floors and the bottom floor was commercial and the reason there was a bit of a question mark over whether that was a high risk building fell on the fact that part of the roof was used as a roof garden and then there was a bit of a discussion about whether that roof garden which was partly enclosed and partly not enclosed counted as sort of this seven story and then took you into the higher risk building territory and so the Tribunal looked at that and they were going into all the different things that considered when making their decision but they ended up looking at the regulations on the Act and also the guidance and drawing a bit of a distinction between the two. There was a little bit of a discussion about the fact that the guidance seemed to go a bit further than the regulations because it talks specifically about what a story might be and the Tribunal felt that they had to sort of stick more to the wording of the primary legislation but I think it is really interesting because when you read the decision they talk about the fact that there is sort of over 50 or so pages of Government guidance out there now. They talk about the fact that it can be very difficult to know whether you are looking at the right version which it is, the fact that page sometimes disappear without explanation which they do and the fact that you know in places they try to be helpful but are they overstepping and so we have now got some guidance with a bit of a footnote that acknowledges this case while the Government sort of look at this a bit more but that does make it challenging.

Rachel: and does that chime with you Gemma?

Gemma: Yeah, I think anyone who has been involved with trying to translate this legislation into practice will have, you know will recognise some of the challenges highlighted in that case and although the first tier tribunal's decision is non-binding the fact that it did make a decision is contrary to the published guidance, it has definitely give us all a bit of pause and served as a reminder that the starting point also needs to be what the legislation itself says. We should not be relying solely on those guidance documents and that said, there is a lot that the legislation does not say and Danielle has talked about the grey areas. For the time being that Government guidance is the best steer that we have got for interpreting some of those grey areas so as Danielle said, the Government has acknowledged those comments at the Tribunal and said that it is considering them but has expressly said that unless and until stated otherwise, the sector and regulatory body should continue to refer to the guidance so I don't think it is going to be helpful to say we should disregard the guidance. We just need to make sure that we are treating it with that healthy dose of caution, always going back to see exactly what does the legislation say and I think just having that acknowledgement that it might not always be treated as definitive and if you are unsure to take advice. I suppose in terms of status of different documents the other piece that I would mention here is the Grenfell Phase 2 enquiry report and the status of that so we have had a number of questions about that and what I would say is that although it made a large number of recommendations and we are looking ahead to what might come from that, we are in a position at that moment where we do need to wait and see which if any of those recommendations to the Government will choose to implement and how for the time being nothing has changed legally as a result of the publication of that report, but there are some key recommendations within it such as the change, you know the recommended change to the definition of higher risk building, the vulnerabilities of residents and anyone involved in managing higher risk buildings really need to pay close attention to any shifts in that so it continues to be an aver evolving landscape on Grenfell Phase 2 enquiry, we have been promised a full response from the Government within six months so we await that kind of full response hopefully come March to see which of those recommendations the Government is going to take forward.

Natalie: And in terms of the recommendations I would suggest the clarity on the guidance point it is unhelpful that there is that lack of clarity when the failure to comply is and can be a criminal offence for companies and individuals there really needs to be a lot more of a steer particularly on where we can place the weight because it is just a really key important point for everyone to be clear on.

Rachel: Yeah, I agree on that and if people weren't sitting up and listening the mention of criminal offences usually helps. I think on that it theme, Natalie it would be helpful to understand what we think the approach to enforcement might be. We are some way off aren't but have we got any indication from the regulator as to how they might approach enforcement.

Natalie: Yeah so well all the indications from the BSR for the occupation phase is that they are going to be collaborative and particularly the its a broken record now but where the guidance isn't clear, they should be tolerant to the fact that APs and POPs, they need that time to understand and adjust to the requirements and there things we've got a statutory duty to assist and encourage relevant people which includes the Act and the paps to comply to achieve this safety objective but that approach is going to evolve an expectations will change and even actually in fact the latest from the building safety regulator for the building control applications is that they are stepping away from dialogue and they are just going to be making decisions without engaging with those who are making applications because of the delay so they are already evolving in terms of approach and just more generally, in terms of all regulators they need to comply with the regulators code so in terms of taking enforcement action and making their decisions, they need to comply with these principles of transparency, proportionality and fairness. In terms and their own enforcement policy the building safety regulatory ever said that they will be looking at taking a risk-based approach which I think we would have expected so they are going to be responsive to the highest risk buildings. They are going to be taking into account the vulnerability of the residents and they are going to be reactive to these reported safety incidents whatever that captures in due course so that will be the mandatory safety reports that we need to clarity on but also could be clarity sorry potentially be issues reported directly by residents so that ties in with the resident engagement piece that Danielle mentioned because ensuring that any issues with residents are able to be escalated and dealt with quickly and efficiently and effectively you want to be able to do that so you are not drawing in the attention of the regulator with irate residents and tenants. In terms of the sorts of enforcement action they can take but again it is quite a wide range of method and a couple of new ones thrown in so we can just have informal actions and advisory information that they can provide you with. They can also issue enforcement notices, and they can ultimately decide whether or not to prosecute but in terms of a new measure they need to appoint a special measures manager and that is somebody who would be appointed at your cost to manage the relevant requirements and part 4 of the Building Safety Act. They are the building safety regulator is a branch at their HSE so as an organisation they are experienced in undertaking these investigations making the enforcement decision and so they will be using all of that wealth of experience to inform where we go from here.

Rachel: OK that is really helpful. I think just having an understanding about hat sort of evolving risk-based approach will be help people because we are probably all guilty of not necessarily looking forward to what might happen when we have got something on our desks. That is really helpful Natalie, and I think I guess an obvious follow up question from around this legislation guidance enforcement is that looking forward to the next 12 months what between you are your recommendation with a view to managing and how clients will manage compliance with all of these various regulations and in occupation requirements

Danielle: Well, I think again we talked about the specific duties and for principal account person and account of purposes. They all remain keen to put those measures in place and make sure that you are getting your strategy and get your report pulled together and all the rest of it, but I think we are going to see a shift over the next 12 months and we are also thinking beyond that and consideration longer terms compliance. I think those with responsibilities are going to need to start thinking not only what do we need to put in place, but do we manage that? When do we need to review it, what support do we need to keep it up to date, so in terms of appointing third parties to help with that, do we need to go beyond the initial requirement just to prepare the strategy or prepare the report to, you know do we capture things that might need like regular reporting or you those reviews you know who is responsible for triggering that and how does that review process all work? I know Gemma mentioned it already but we will need to think about competency I think that is going to be key because there are lots of entities out there who are offering to support with these services and you know thinking about how appropriate they are, what their credentials and also sort of how you are going to monitor their performance and I think on that note just contract governance in general is very important because those are the responsibility if you are a principal accountable person or accountable person, you can't full contract and step out of that role so you do need to be thinking about how you are keeping checks on the third parties you have appointed and whether you need to build in audit processes and other sort of measures just to ensure that you are protected.

Natalie: It is like compliance with all areas like health and safety isn't it because it is not just about ticking some initial boxes and then moving on, it is about being able to show this active ongoing management of risk especially with a view to a potential consequences and I just think it is really difficult at board level, at director level or any level actually where you have got that responsibility for building safety to get comfortable that you have got the right level of oversight and so that it not only just a course in terms of keeping the residents safe, it is particularly when it is your neck on the line and when the reputation of your business.

Rachel: You mentioned directors there which is something we don't necessarily always things of, but I suspect you might have some listening so Natalie how likely is it that a director as an individual would actually be found of a criminal offence in terms of building safety.

Natalie: OK so whether they are found guilty or not it would be approved on the evidence beyond all reasonable doubt and that would be for the prosecution to prove but in the first instance it is the company that has to be guilty of an offence which stating the obvious is the best way to avoid that is to sufficiently manage the risk in the first place but we discussed some of the challenges on this today and then what needs to be established is this wording that appears in the Act which means that it is the consent, the connivence or the neglect of an individual which has to have caused the company to have committed an offence.

Rachel: I'm going to be honest Natalie, I lot of us are either real estate or construction based people here and that is kind of going into areas we might not have as much understanding around so what does that sort of consent, connivence, neglect, phrase really mean?

Natalie: Well so there is no fixed rule established in case law but there is other case law that goes into the sort of factors that might establish these things I would just categorise it as consent being agreed to something, connivence is where you turned a blind eye to something and neglect is where you didn't actually know about something but you should have or should have been asking questions about it. Essentially any role which covers compliance and managing it to risk the building safety and as I've said it is not just at director level, it is the liability is much wider than that then you should be asking questions and making sure you have got that sufficient oversight and that you understand what the procedures and processes are that are in place because that is what the expectation is.

Rachel: OK. So, I think probably on that topic in terms of discussion, it is probably a good point, and it is one of those things that when you think about it, it is a good reminder as to why it is so important to be thinking about this stuff holistically and the way that we have done today. Just looking at the time and I'm conscious that we said we would put some time aside for questions. I wonder if we stop this sort of chat that we are doing at the moment and just turn to those questions. So, we can get through some of the topics that are coming up so if I just have a look yeah Gemma you mentioned when you were talking earlier the Grenfell Phase 2 report. I think people are probably interested in that by the looks of it and obviously as you say, we need to wait but do you think there are any other recommendations coming out of what we are expecting that will have any particular relevance to the in-occupation phase?

Gemma: Yeah, I mean the Grenfell Phase 2 report is vast. It is I believe over 1,700 pages and 58 recommendations, I would say the majority of those are specific to design and construction, there is a huge focus on the things that went wrong during the design and construction process and what might be done to remedy that to the extent I has not been done already but I think for the occupation phase probably where the most key focus is on this area of residence with vulnerabilities so I mentioned earlier the suggestion or the recommendation that the definition of higher risk buildings is urgently reviewed and the reason for this the suggestion is that that should in fact not just take into account the height of a building but also the vulnerabilities of residents within it so the nature of those vulnerabilities of those occupants. I think at the moment it is difficult to be certain of what that could mean. If the definition becomes dependent on subjective criteria or potentially shifting criteria it could have a significant impact on which buildings fall within the scope of this legislation and so change to that really is going to have significant ramifications for the industry and for particularly people managing higher risk buildings. It is also I suspect likely to increase the number of buildings being classified as higher risk if it does come to pass and the workload for the regulator where we are already seeing that kind of to an extent overloading of the regulator at the moment with queries and quite slow responses certainly at the moment and so clarity on that is going to be vital. The other aspect that deals with vulnerabilities is that the enquiry report recommended that the Government reconsider this issue around additional requirements relating to vulnerable residents so we need to have sufficient information about the needs of those residents to aid their escape in the event of a fire so you have heard that referred to a requirement for a personal evacuation plan and that is one recommendation that actually the new Government had indicated even before the publication of the report that it was intending to bring forward having been recommended initially by the Phase1 enquiry so the new Government had committed some funding to that certainly in the social housing sector so I suspect that is something we are going to see coming through with much more focus.

Rachel: OK. That's interesting. It brings that home doesn't it the overall point of the legislation itself.

Gemma: Absolutely.

Rachel: Yes so, I question I've got, and I suspect some people might be interested because it would come up in terms of sort of corporate real estate transactions. There is this concept around isn't there around piecing the corporate vale and corporate liability, Natalie was talked about directors, I was just wondering what can the courts do in terms of sort of looking to parent companies in terms of liability so say if you can't go against the press and that you want to but how widely might the courts interpret that?

Natalie: So, yeah I imagine this will be in people's minds in the context of the Building Safety Act because of the mechanism it brought in to piece the corporate vale in respect of civil liability and for what are effected is these associates and associated companies for building defects and that is with the building liability orders and the remediation contribution order but in terms of the criminal liability the regulator can only bring criminal proceedings against the entity which has committed the criminal offence so there is no option to go after and proceed against apparent company unless it would be possible to show that the breach was through the act or default of that parent company so it is something where they could look to try and establish it by looking and it would be quite an extensive investigation I suspend into things like board minutes and actually looking at where these decisions were being made. However in terms of sentencing, there is some potential for a court to look behind a company to the wider group or parent to company circumstances so for example if there was if there was evidence the inference that and entity which had committed an offence had been given a contract as a subsidiary as an SPB or a JB to be created to block and avoid criminal sanctions then the courts would then consider potentially the parent company in a wider group circumstances to attract a high sentence so there is that possibility.

Rachel: So again, lots of think about on that side of things and I think in terms of wrapping up because I'm conscious of time, I've spotted a question Danielle that I suspect is more for you and it is around competency and what competency means because I think that has come up a few times in various answers. I can sort of guess what the answer might be but is there any specific criteria for what competency means in the building safety sphere.

Danielle: I think that is a real example of where the regulations go so far and then the guidance tries to complicate things by adding another layer isn't it? OK so turning first to the sort of what the Act said and what the regulation says. We talked a little bit earlier about this general GT to manager building safety risks. That is supposed to be done in accordance with some prescribed principles. When you get into the detail of the regulations those require that if you are responsible for building safety compliance or you are supporting or appointing someone to support with that you have to make sure that they relevant competence which then begs the question what do we actually mean by relevant competence. The regulations refer to it very broadly as the skills, the knowledge, the experience to perform the functions for which that individual entity is responsible. So on the face of it that isn't drastically different to what I would already be saying to clients and what I would already be sort of expecting them to be thinking about so whenever you re appointing a third party or a contractor to support you with something you know it is good practice to check that they can do what they say they are going to do and then they have got the right levels of skills qualifications and experience but I guess your question was not so general, it was more about specific criteria. The BSA, the Act is sort of gave the regulator the option to appoint a committee to provide some guidance on this and they have actually done that. There is a committee called the industry competence committee and that has been set up to sort of give a bit more clarity and hopefully give some criteria. As far as I can see, they have not put their name to anything yet but there was some guidance over the summer generally issued which they may or may not have been involved in and that does mention some specific criteria so that talks about standards or specifications by the British Standard Institute so one is a publicly available specification and the other I sort of rereferred to as a competence framework which might actually be the benchmark framework that is sort of mentioned in the explanatory notes for the Building Safety Act. I won't profess to know the numbers off the top of my head. I'm not that good but what I would say is the guidance does go on for sort of say reliance on those specifications is not sort of the only way, it doesn't guarantee sort of meeting legal obligations so I think what we can say is they will be influential, but I don't think they are the only way. I think I tis still remains really important to carry out due diligence, ask the right questions and keep records o the steps you have taken so yeah it is one of those where there is sort of, there is a steer, but it might not be your only option and your only route forward.

Rachel: that's really helpful thanks Danielle. Just looking at the time but also, I've flicked through the questions that had come through and looking at them I think we have covered off the vast majority of them and as I said, if anything comes up afterwards that people think to ask please you can just let us know. So, I think unless anyone has anything else to add at our end, probably a good time to wrap the session up. We have covered what we wanted to cover in terms of the conversation. A big thank you to Gemma, Danielle and Natalie because I think that was really interesting and hopefully everyone found that really informative and I think it just shows how quickly you can get into so many different topics and building safety in you know just an hour and obviously a big thank you to everyone that has joined and taken the time to listen. I think we all really enjoyed it and hope you did too. As takeaway's if nothing else setting up this webinar is a conversation between us has shown just how far-reaching building safety is. I think we all felt like we could have easily gone off on various tangents and hopefully we haven't done that. You have been able to follow what we have done but lots to follow up on. As I said at the outset we have intentional tried to deal with various topics and we are actually coming across on our desks rather than diving into a lot of detail which we could have done, not least because I think it is a bit like building safety is as bit like opening Pandora's Box you know once you have done it so much can come of it so I think in terms of the takeaways that the four of us want to you to leave the webinar with first off we all agree that there is no silly questions when it comes to building safety. We love getting the questions, we would encourage everyone to keep asking them and to share as much information as you can with us. Secondly, we are conscious that we might not have covered everything, but it is burning a hole in your desk right now. So please do feel free to contact any of us on this webinar today if there is anything you would like to discuss in more detail or you have any further questions, or I suppose if any of the conversation topics that we have touched on today has prompted any questions just ask. We are all more than happy to help. And I would finish my emphasising Gowling's approach to building safety hopefully as we have demonstrated today our approach is very much a cross firm one, but it is not limited at all to real estate and construction and we are in silos. Between us we think that is the right approach because building safety touches on so many different areas and perhaps areas have come out today that you have not thought about before so again if you have a question that you don't think the four of us are the right people to answer it then still send it across and we will make sure we point you in the direction and we can definitely, definitely help so again than you to everyone for your time today as I said we have really enjoyed it. I hope we have too. In terms of some final sort of housekeeping and admin bits at the end of the webinar some feedback questions will pop up at the end so if you could take the time to answer them we would really appreciate it because the feedback really helps us and helps us form future discussions and I guess a final plea from the four of us would be if you have enjoyed this if you have found it helpful if you think there are other people who would find it helpful then please do share the recording. So, thank you from us all and goodbye.