A Guide to the Building Safety Bill 2020

09 December 2020

The Building Safety Bill is one part of the Government’s proposed response to the Grenfell tragedy.

The Government has already banned some materials and provided funds towards the cost of removing unsafe cladding. New blocks of flats over 11m high will have to have sprinkler systems.

If enacted, the Bill will play its part by creating systems and responsibilities designed to help make sure nothing like Grenfell can happen again. It will probably become law in 2021 and into effect by 2023-4.



Higher Risk Buildings

The Bill does not define “higher risk buildings”. That is to be left to subsidiary regulations but the term is likely to refer to tall buildings with at least a residential element.

Higher Risk Buildings during design and construction

As with the Construction (Design and Management) Regulations 2015, there is likely to be a list of persons with different design and construction duties: the Client; the Principal Contractor; the Principal Designer; the Contractor; and other Designers. The Government will be free to introduce competence requirements for these duty holders.

There will be duties to report structural and fire safety occurrences that represent a significant risk to life, including when the building is in occupation.

Gateway Regime

There are to be three ‘Gateways’ to the construction of higher risk buildings:

  1. At planning application stage, there will be a new statutory safety consultee.
  2. Before construction starts, the Regulator must be satisfied that the design meets Building Regulations and does not include any unrealistic safety management expectations.
  3. At completion or final certificate stage – Building Control will assess whether the work is being carried out in accordance with the Regulations.
  4. Also, all ‘prescribed documents’ (not defined) must be handed to the Accountable Person (see below) and the duty holders must give the Regulator all prescribed documents with information on the building. Only once the Regulator is satisfied, will it issue a completion certificate. No doubt development agreements and building contracts will be amended to require that the “prescribed documents” are provided before practical completion certificates and associated payments are made.

The Government wants there to be a ‘golden thread’ with information running throughout the life-cycle of every higher risk building.

Duty holders while higher risk buildings are occupied

There will be two new roles:

  1. Accountable Person; and
  2. Building Safety Manager.

The Accountable Person (AP) can be more than one person. The AP must register the building with the Regulator and obtain a Building Assurance Certificate before occupation. Existing higher risk buildings will also have to be registered. The Certificate must be displayed clearly at the premises.

The Building Safety Manager (BSM) is to be appointed by the AP. The BSM must assess safety risks and take all reasonable steps to prevent and mitigate a major incident.

The AP must ensure there is an up to date Safety Case Report, demonstrating compliance with the law and regulations.

The BSM must also maintain a Residents’ Engagement Strategy.

The BSM can be a person or an organisation. The BSM will manage the building in accordance with the Safety Case Report and the Building Assurance Certificate, co-operate with the managing agents, comply with directions and notices from the Regulator and co-operate with occupiers and owners and any Responsible Person under the Fire Safety Regulations.

Landlords and Residents of Higher Risk Buildings

Residents too will have obligations-

  1. to keep relevant items in repair;
  2. to take reasonable steps to avoid damage to any relevant safety item; and
  3. to co-operate with the Accountable Person, particularly their duty to assess safety risks and prevent serious harm.

The Landlord and Tenant Act 1984 is to be amended so landlords of long leases of units in higher risk buildings will owe safety duties to tenants - and vice versa. Landlords are likely to be the Accountable Person.

They should also be able to recover their costs under the service charge. Understandably that is causing some concern – why should tenants have to pay for historic failures which were not their fault? The government says it is consulting with the finance and insurance industries to alleviate this problem to some extent. Also, a new ‘building safety charge’ will make it easier for leaseholders to find out what they are being charged for to keep their building safe. The Government will have powers to limit the costs that can be re-charged to leaseholders.


All Buildings

New Regulator and New Committees

The top of the new hierarchy will be the Building Safety Regulator (the Regulator) and that will be the Health and Safety Executive. The Regulator will:

  1. act as building control authority for higher risk buildings.
  2. oversee the safety performance of all buildings, including the supervision of building control bodies and ‘building control approvers’ (which is what building inspectors will then be called).
  3. encourage competence with a new Industry Competence Committee and will create a unified building control profession with codes of conduct.

There will be a new Building Advisory Committee to replace the Building Regulation Advisory Committee for England and a new Committee on Industry Competence.

There is to be a Residents Panel for higher risk buildings that the Regulator must consult in relation to proposed guidance.

Changes to Building Control and Building Regulations

  1. Building Control Approvers will replace Approved Inspectors.
  2. Registered Building Inspectors will advise the Building Control Approvers and local authorities.
  3. There will be a new code of conduct for both and potential criminal liabilities for them.
  4. Once in force, there will no longer be an ability to use private building control providers for higher risk buildings – building control will be the Regulator.

Construction Products

New UK Regulations will supplement those adopted from the old EU Regulations. Of course, the intention is to ensure the safety of construction products.

Architects’ Competence

New continuing professional development obligations are likely to be imposed. The Architects’ Regulation Board will monitor competence, with the right to strike the incompetent from its register.


Enforcement

Unsurprisingly, this is being tightened up.

Offences

The Regulator will have 10 years rather than 2, to prosecute certain offences under the Building Act 1984. Non-compliant work can be required to be rectified for up to 10 years instead of one. Directors who consent to or connive at breaches by their company could find themselves criminally liable.

There will be new criminal offences of giving misleading or false information to the Regulator.

Compliance and Stop Notices

The Regulator will also be able to issue a ‘Compliance Notice’ to order an issue to be remedied by a certain date and a ‘Stop Notice’ requiring work during the design and construction phase of a building to stop until any non-compliance is remedied.

In relation to higher risk buildings the Regulator will also be able to replace an Accountable Person or a Building Safety Manager (see below) with a Special Measures Manager if there have been serious failures endangering life.

New Homes Ombudsman

This person will get Government funding and they will be able to require developers to join their scheme. There will be a Code of Practice and sanctions for breach. There will be no need for flat buyers to go through their landlord’s complaints procedure and then wait 8 weeks before going to the Ombudsman or instead go first to their MP or their Councillor or recognised tenant panel.

The Golden Thread of Information

The i3PT/CIOB Golden Thread Report of December 2020 was the result of an industry survey on the provision of a golden thread of information about a property throughout its life. It seems that, in many cases, Building Information Modelling is likely to be an important tool in providing that thread. The majority of those surveyed believed that less than a quarter of UK construction projects are currently delivered to the BIM level required by the BIM Framework.

It also revealed a lack of clarity over who owns project data (and therefore who has the ability to share it) and a belief that less than half of client and facilities management teams have the necessary IT to check that the design and construction information they are given meets their requirements.

However, in the opinion of 75% of those surveyed it was not IT, but industry culture, that is the biggest blocker to delivery of a golden thread of information.

https://www.goldenthread.co.uk/Golden-Thread-Review.pdf

Finally

There is a great deal of detail in the Building Safety Bill but still so much to be established by subsidiary regulations.

Any non-compliance with the new laws and regulations or inability to demonstrate compliance, could create enormous difficulties with buildings insurance and the ability to sell a flat or get a mortgage to buy one. The conveyancing process could be delayed by the need to establish that all is as it should be with a higher risk building.

Residents of blocks of flats will need expert advice and comprehensive information before exercising their Right to Manage or to enfranchise, so they know what they are taking on and who should be their Accountable Person and Building Safety Manager.

We can only hope that the new system, when it arrives, is a great success. Everyone involved will need to understand clearly what their obligations are and how the system works. IT systems will have to be updated. The Regulator must work with clarity and efficiency. The competence of those holding the various responsibilities will be vital. The Golden Thread of Information must be established and maintained. Success will be more assured if the industry enthusiastically embraces the vision and finds ways to help the new system work as effectively as it can.


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