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Building a Safer Future: the government’s Consultation

15 August 2019 #Construction


Following Dame Judith Hackitt’s Final Report and the government’s Implementation Plan, this summer the government published a consultation on proposals for reform of the building safety regulatory system, which closed at the end of July 2019.  The Home Office also issued an accompanying call for evidence on the Regulatory Reform (Fire Safety Order) 2005, seeking views from those involved in the fire safety sector on the effectiveness and application of the current Fire Safety Order, with a view to providing a new regulatory framework for the ongoing management of fire safety in non-domestic premises and the common areas in multi-occupancy residential buildings.

The proposals in the consultation build on the recommendations in the Hackitt report and the steps the government has already taken, as described in chapter 1 of the consultation, and cover 5 main areas.

  1. The scope of the new regime

The Hackitt Report recommends new requirements should apply to building over 10 storeys (30m), but the government wants to extend this to all multi-occupancy residential 18m or more (6 storeys).  The government also wants to design the system to allow other multi-occupancy high risk buildings, such as hospitals, residential educational buildings, or prisons, to be included in the future, although they will not be included from the outset.

  1. The concept of dutyholders who have clear responsibilities throughout a building’s design, construction and occupation
    • In chapter 3 the government proposed 5 dutyholders (client, principal design, principal contractor, designer, and contractor) who will be responsible for the safety of a building in the design and build stage. These dutyholders will need to show they are managing the risks at 3 “gateways”: (i) before planning permission is granted; (ii) before construction begins; and (iii) before anyone moves into the building.
    • There will also be an accountable person who should be responsible for the fire and structural safety of higher risk buildings when they are occupied.
    • Finally, there will be a dutyholder responsible for the “golden thread” of information about the building, ensuring it is created, maintained, and held digitally and accessibly throughout the building life cycle, with key specified information held in a specified accessible format so it can be accessed by the regulator.
  1. Giving residents a stronger voice in the system and ensuring their concerns are never ignored

Chapter 4 sets out proposals for how the new system will ensure residents receive the right safety information about their building, with key information provided by the accountable person and more detailed information available by requesting it from the accountable person.  There will be limited grounds for refusing to provide this detailed information (e.g. security risk or that it would divulge personal information).

Residents will also be able to raise any opinions or concerns about the safety of their building, in accordance with the accountable person’s Resident Engagement Strategy, and not be ignored.  They will be able to take urgent safety concerns to the new building safety regulator (see 4 below)  if the accountable person fails to deal with them properly.

The government recognises that residents have a key role in keeping their buildings safe and consulted on proposals for an obligation on residents to cooperate with the work of the accountable person to keep the building safe.

  1. Plans for a new building safety regulator to provide oversight of the new building safety regulatory regime

The proposals in chapter 5 provide for a building safety regulator with responsibility for ensuring that the new regulations are followed, that those responsible have the right skills and knowledge for the job, and oversight of building safety throughout England.  The new regulator will also be responsible for advising government on which buildings should be included in the new regime.

Chapter 5 also includes proposals for stronger regulation of construction products, by making manufacturer’s responsibilities (labelling and information on safe use) clear in legislation, strengthening national regulation of construction products with a national complaints and enforcement system, and setting minimum standards for independent assurance schemes.

  1. Strengthened enforcement and sanctions to deter non-compliance with the new regime

In chapter 6 the government proposes to create new criminal offences to ensure that dutyholders comply with their responsibilities, and give the new regulator powers to take quick and effective action, through fines and other financial penalties, when the new regime is not complied with.

The government also proposes making it easier to take action where building work does not comply with building regulations standards, by giving local authorities more time to serve enforcement notices, and enabling private individuals to make a claim for damages where work has not met building regulations standards and they have suffered harm as a result.

What next?

The deadline for responses to the consultation has now passed.  Key industry bodies have provided and published their responses, including CIC, CIOB, RIBA, CIAT, BESA, the National Housing Federation, CIH, the Royal Town Planning Institute, and CIBSE

The responses published are broadly supportive of the recommendations and proposals, consistent with previous responses to the Hackitt Report.  However, the government has been encouraged to be more ambitious go further in its reforms.  In particular, there are concerns that:

  • the scope of buildings included in the new regime is too limited and should be widened – risk cannot be assessed on height alone (to include e.g. buildings with commercial kitchen in retail spaces which also have residential units). In addition, some recommendations, e.g. residents’ rights, could apply to all multi-occupancy buildings regardless of height.
  • the gateways in the proposals do not account for permitted development projects: e.g. owners of office buildings can convert them into residential accommodation without planning permission and so the first gateway opportunity may be missed for new high rise multi-occupancy developments in existing buildings.
  • there may be high cost to building owners in ensuring that their existing buildings meet safety requirements, which could be funded by establishing a Building Safety Fund.
  • the accountable person will need wide powers of access to the building (including residential units) to make sure they can comply with their obligations.
  • there is too much reliance on self-regulation, whereas in order for real change the recommendations may need to be mandated by legislation or regulation (which would need to be driven by the government but which the government may not have appetite for).
  • existing regulators, such as the ARB for architects, should be responsible for overseeing the enhanced competence requirements for specific disciplines.
  • The consultation was weighted towards fire safety but building safety encompasses far more than this. Other hazards, such as climate change and the need to adapt buildings to be safe in the changing climate, need to be addressed and considered, with buildings and regulations for them treated as a system, as set out in the Hackitt Report.
Clarkslegal, specialist Construction lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Construction matter please contact Clarkslegal's construction team by email at constructionsector@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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Hannah Mycock-Overell

Hannah Mycock-Overell
Associate

E: hmycockoverell@clarkslegal.com
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