Note

This insight was published prior to the Building Safety Act receiving Royal Assent on 28 April 2022. As such, whilst accurate at the time of publication, its contents may have been superseded by the changes implemented by the Act or its related secondary legislation.

You can find a list of all Gowling WLG articles relating to the Building Safety Act here.


In our insight in July 2020, we considered the first draft of the Building Safety Bill. On 5 July 2021, following prolonged consideration, the revised draft Building Safety Bill (the Bill) was introduced to Parliament. This paves the way for significant regulatory reforms in the UK construction and residential property sector, with a focus on high-rise residential building ("HRRBs").

This is the first article in our series on the second draft Bill of July 2021 in which we will highlight what you need to know. In this insight we focus on the framework of the new regulatory system.

Introduction

Following the Grenfell Tower fire tragedy, and the subsequent review of building regulations and fire safety undertaken by Dame Judith Hackitt, it became clear that existing systems relating to fire safety in high-risk residential buildings were inadequate and "not fit for purpose"[1]. Dame Hackitt's recommendations have led to a complete overhaul of building safety regulations to seek to ensure that nothing of this nature can happen again.

The proposed legislative changes are wide-ranging and industry stakeholders are collaborating to ensure that the building safety and standards reforms can be put into practice effectively. The regime will be headed by a newly appointed Building Safety Regulator (the Regulator), expected to start operating within 12 to 18 months.

Building Safety Regulator

The Regulator is part of the Health and Safety Executive (the HSE), reporting to the Secretary of State, and is responsible for managing and overseeing building safety risks in all buildings to include the implementation of the new safety regime for HRRBs. It appears that the definition of HRRBs is intended to include new and existing buildings over 18 metres in height, or seven or more storeys, and that contain two or more residential units. At present however, the definition of HRRBs within the Bill is not consistent, differing between different parts of the Bill - we expect that this conflict will be rectified before the provisions take effect and are now being drafted in the draft Building (Higher Risk Buildings) (England) Regulations 2022. Hospitals and care homes are now included in the definition where relevant.

The Regulator has extensive functions, which include the following:

  • To assume the role of the building control authority in England in respect of construction on HRRBs. The Regulator will oversee the safety and performance system for all buildings, including advising ministers of changes to building regulations, and will enforce the new regime in occupation of HRRBs and have powers to involve other teams, including Fire and Rescue Services to assist in making regulatory decisions.
  • To oversee the safety and performance of all buildings. The Regulator will develop key performance indicators and will have powers to impose sanctions for poor performance.
  • To assist and encourage registered building inspectors and the built environment industry to meet building safety criteria and improve building standards.
  • The Bill gives the Regulator the power to establish and maintain committees comprising a residents' panel, an industry competence committee and a building advisory committee.

Dutyholder regime

The Bill will provide for a new dutyholder regime for HRRBs to improve accountability as buildings are designed, constructed, refurbished and occupied. Measures will be in place to ensure residents feel safer in their homes with the creation of new dutyholder roles during occupation. The Government is working with the British Standards Institution to create a competence framework for the key roles.

Design and construction dutyholders phase

During design and construction, the dutyholders will reflect the roles implemented by the Construction (Design and Management) Regulations 2015: the client, the principal designer, the principal contractor, the designer and the contractor.

Occupation phase dutyholders

The Accountable Person will be any individual, partnership or corporate body that owns the building (holds the legal estate) and/or is under a repairing obligation for the common parts of a HRRB. There can be more than one Accountable Person for a building and if that is the case, one will be the Principal Accountable Person for that property. The Accountable Person has extensive duties including:

  • to register the building with the Regulator and to obtain and display a Building Assessment Certificate when required - for existing buildings there will be a five year transition period for applications;
  • to appoint a Building Safety Manager and notify the Regulator of that appointment;
  • to assess and keep under review the building safety risks of that building;
  • to take all reasonable steps to prevent a building safety risk materialising and to reduce the severity of an incident resulting from such a risk;
  • to prepare a "safety case report" and notify the Regulator it has been prepared or revised - the report sets out the building safety risks and how these are being managed;
  • to engage with residents, to include handling complaints and taking actions on concerns raised;
  • to co-operate with the Responsible Person or Persons (the RP) for the property - the RP is the key dutyholder under the Regulatory Reform (Fire Safety) Order 2005 and the obligations work both ways.

The Building Safety Manager can be an organisation or an individual and supports the Accountable Person.

Residents of HRRBs will also have duties to comply with relevant requests from the Accountable Person and effectively, to cause no harm.

All dutyholders' obligations will include the management of documentation and information throughout the building's lifecycle - this is the "golden thread" of information that we will cover in more detail in our next insight on the Bill.

Residents' voice

With the implementation of the new regime, residents in HRRBs will have a stronger voice in the system and will be able to access vital safety information about their building and to expect pro-active engagement from the Accountable Person. This is intended to drive higher safety and performance standards.

New Homes Ombudsman Service

Owners of new build homes will be able to escalate complaints through the newly established New Homes Ombudsman Service. It is likely that developers will be required to become and remain members of the Service and to comply with the recommendations of the Ombudsman.

Architects Registration Board

Provisions are included in the Bill to improve the competence of architects by introducing a new power for the Architects Registration Board (the ARB) to monitor the competence of the architects on their Register. All architects must be registered. The ARB will be able to specify criteria, and if an architect does not meet the requirements or is found to be guilty of professional misconduct or incompetence, the ARB will have the power to remove them from the Register.

Construction products

The construction products regime will be strengthened with the intention that all construction products made available in the UK market will fall within a regulatory system.

The Bill provides an ability to create detailed regulations with attendant enforcement powers, in the event that products do not meet the required standards. If a product has the ability to cause death or serious injury to people, it may be added to a "safety critical list", if there are no applicable regulations already in place. If a product fails to meet the specified standards including warnings, there will be powers to withdraw and/or recall the product from the market.

An effective framework for safety?

During the House of Commons debates about the Fire Safety Bill, Chris Pincher stated: "we are bringing about the biggest changes in a generation to the system through the building safety Bill" [2]. This is undoubtedly true but there are many who consider that the changes do not go far enough, particularly in relation to arguably high risk buildings that fall outside the definition (whatever that may be in due course) of the HRRBs.

In our next insight on the Bill, we will focus on the "golden thread" and the new gateway regime.

If you have any queries on this or any construction related issue, contact Sue Ryan.

Footnotes

[1] Building a Safer Future - Independent Review of Building Regulations and Fire Safety
[2] Hansard - UK Parliament Fire Safety Bill - Volume 811