The Building Safety Bill is the direct result of recommendations made in the Grenfell inquiry and the Hackitt Review. The framework set out in the draft Bill will impact the entire construction supply chain.
The provisions target ‘higher risk’ buildings, but the bill will introduce a stricter safety regime with implications for all buildings. ‘Higher risk’ buildings include all multi-occupancy residential buildings over 18 metres or 7 storeys high in England. Care homes and hospitals are considered within this scope, but only during the design and construction stages.
What are the proposals in the Bill?
Creation of a new building safety regime
A Building Safety Regulator (BSR) will be created with powers to oversee and enforce a new, more rigorous building safety system.
- It will be run by the HSE and will have new responsibilities that affect all local authority building control teams including taking control of building regs applications on in-scope buildings and assigning them to local authorities.
- HSE will appoint a lead surveyor on high risk projects and has the power to suspend or remove building inspectors from the register and prosecute them.
- Updated sanctions will mean serious consequences for the contravention of building regs. There will be new powers for the BSR to issue Compliance Notices and Stop Notices.
- Those in senior roles in companies can be liable if an offence is committed with “their consent or connivance” or is attributable to their neglect. Local authorities and building control surveyors will be legally culpable for their decisions.
- The BSR function is going to be funded by a full cost recovery approach, enabling the Regulator to charge fees – to be set in future regulations - and recover charges from those it regulates.
Duty holders and the Accountable Person
In order to achieve consistency and clarity, the duty holders under the new rules are closely aligned with those within the Construction (Design & Management) Regulations 2015 (CDM 2015). The duty holders include the client, the Principal Designer at the design phase, the Principal Contractor in the construction phase and the Accountable Person (AP) at the occupation stage.
- Duty holders will be obliged to report to the regulator any structural and fire safety occurrences that could cause a significant risk.
- The AP must apply to register a higher risk building before it becomes occupied. The Building Safety Regulator will be responsible for keeping a register of higher risk buildings.
- On occupation, each higher risk building will have an AP who will be the duty holder. They will have to produce and maintain a safety case report, which must be produced to the BSR.
- The AP will have to appoint a Building Safety Manager to oversee building safety on a day-to-day basis.
- For higher risk buildings, the Bill provides powers to prescribe documents to be included in the Building Control Application, including a signed declaration from the client that they have assessed and are content with the competence of the Principal Designer and the Principal Contractor.
- The AP can be an individual, a partnership or corporate body, and can be a management company.
- The AP must maintain a Residents Engagement Strategy covering access to safety information and complaints procedures.
- The BSR will have the power to replace the AP with a Special Measures Manager if there are serious failures which endanger life safety.
- The Bill makes provision for regulations regarding the competence of those taking on work that needs to comply with building regulations. The government is publishing further guidance documents and BSI will issue standards in due course.
- Building control surveyors will have to prove their competence through regular examination and assessment and will have to be licenced to practice for all building control work.
- There will be additional measures in place to govern the competence of architects and other building industry professionals.
The Three Gateways
The Bill breaks the life of a building into three stages called “Gateways” with different duty holders and responsibilities. At each stage, information must be recorded and stored digitally, creating a ‘Golden Thread’ of vital information about the building over its lifetime.
- Gateway 1 is created at the planning stage. The required information – including a ‘Fire Statement’ will be provided by those applying for planning permission for developments. The BSR will become a new statutory consultee.
- Gateway 2 supplements the existing building control system. Gateway 2 provides a ‘hard stop’ where construction cannot begin until the BSR is satisfied in relation to the Building Regulations, safety and fire safety.
- Gateway 3 is equivalent to the current completion/final certificate phase. Duty holders will be required to submit to the regulator prescribed documents and information on the completed building.
New Homes Ombudsman and measures to protect leaseholders
- As proposed by The All-Party Parliamentary Group for Excellence in the Built Environment, for which the CIC provides the Secretariat, a New Homes Ombudsman will be created giving householders direct access to the Ombudsman process. Developers that fail to sign up to the Ombudsman will face sanctions.
- Under the Defective Premises Act, if a dwelling is unfit for habitation, a leaseholder can make a claim within six years of the building being constructed. This time limit is set to be extended to 15 years and will also cover refurbishment and remediation work.
Construction Product Safety
- New powers will be prescribed for the national regulation of the safety of all products used in construction. The regulator will sit within the Office for Product Safety and Standards (OPSS) and will be able to move products from the market and prosecute those who fail to comply, as long as they are UK-based.
What is the timeline of activity?
- The Building Safety Bill was introduced to the House of Commons on 5th July 2021, having been published in draft form a year earlier. Government has published some draft secondary legislation alongside introduction of the Bill. This set outs technical definitions, excludes certain buildings from the regime and, for the design and construction regime, defines the use criteria for a building to be covered.
- When the Bill has completed all the parliamentary stages in both Houses, it is ready to receive royal assent and will become an Act of Parliament. A second reading of the Bill in parliament is thought to be imminent.
- Royal assent is not expected for 12 months but the timeline is uncertain and it is conceivable that it could happen by the end of the year.
- The government says that the Building Safety Regulator will be operating in scale by mid-to-late 2022 and it is already operating in shadow form.
- The obligations on the accountable person are expected to come into force within 12-18 months of the bill receiving royal assent.