On 20 July 2020 the UK Government published the long awaited draft Building Safety Bill ("the Draft Bill"), setting out proposals for reform of the regulatory regime for buildings in England.
The Draft Bill follows Dame Judith Hackitt's independent review of Building Regulations and Fire Safety in 2018, which made 53 recommendations for improvement, the Government's subsequent 'Building a Safer Future' consultation, discussed here, and the Government's response to that consultation published on 2 April 2020 and discussed here.
The Draft Bill seeks to implement major reform to improve building and fire safety in England and has been published to enable construction industry consultation and review between now and 12 October 2020, when the consultation ends.
The Government's housing secretary, Robert Jenrick, has stated the Draft Bill will produce "the biggest improvements in building safety in nearly 40 years". The proposed changes are wide ranging and potentially impose greater obligations on designers, contractors and building control bodies (including approved inspectors, who will become 'registered building control approvers').
Therefore, it is of significant importance to those involved in the construction industry as well as their insurers.
A New Regulatory Regime
A new building safety regulatory regime, regulated by the Health and Safety Executive ("HSE"), is outlined in the Draft Bill.
The new regime will initially apply to all new multioccupied residential buildings over 18 metres tall, or six storeys, in height in England, deemed to be higher-risk buildings (although the Draft Bill gives broad powers for this to be defined).
Existing buildings that qualify will be brought within the new regime under a phased approach.
The HSE will have new powers and duties as the 'Building Safety Regulator' to establish and oversee the new regime throughout both the design and construction phases as well as during the building's occupied lifecycle. The Building Safety Regulator will have both enforcement powers and new powers to prosecute for offences.
As part of this new regime, the Draft Bill introduces "mandatory occurrence reporting" obligations to inform the Building Safety Regulator of structural or fire safety occurrences throughout the life of a building, not just during design and construction. These occurrences are deemed to be "any structural and fire safety event that occurs within a higher-risk building and which causes a significant risk to life safety
Approved Inspectors will become 'registered building control approvers', subject to regulation as a building control body.
The Building Safety Regulator will oversee the safety and performance of all buildings, building control bodies and the regulator will have powers to remove inspectors and hold to account building control bodies.
Gateways, duty holders and the 'golden thread'
Under the Draft Bill, those building or carrying out refurbishment of higher risk buildings will be required to seek building fire and safety approval from the Building Safety Regulator at three distinct 'gateway' stages:
- Gateway One: The planning permission stage.
- Gateway Two: Before construction work commences, the Building Safety Regulator must be satisfied that the design meets the requirements of building regulations.
- Gateway Three: Pre-occupation of the building.
Five categories of 'duty holder' are created, which mirror the 2015 Construction (Design and Management) Regulations. These are defined as the client, the principal designer, the designer, the principal contractor and the contractor.
However, in a significant change, the Draft Act includes new responsibilities for fire and structural safety of the building which require the principal contractor and the principal designer to sign a declaration that the building complies with building regulations.
Duty holders will also be responsible for providing and maintaining important fire and safety information about how the building was design and built, referred as the 'golden thread', to be stored electronically for the entire lifecycle of the building.
The additional duties will be enforced by the Building Safety Regulator, with potential serious implications for non-compliance.
Once occupied, higher-risk buildings will require an Accountable Person and Building Safety Manager throughout occupation of the building. The Accountable Person will have to comply with obligations relating to information provision and reporting on an ongoing basis.
The Building Safety Regulator will maintain a register to which the accountable person must register the building before occupation. Safety risks must be identified and a Safety Case Report must be complied and maintained to ensure that the building is safe for occupation. The Accountable Person must appoint a Building Safety Manager and provide that person's information to the Building Safety Regulator. The Building Safety Manager will then manage the building in accordance with the Safety Case Report.
Changes affecting all buildings
As touched on above, approved inspectors will be required to register as 'registered building control approvers' and new competence requirements will apply both them and a wider range of professionals and tradespeople.
The Building Safety Regulator will hold a register of competent principal designers, principal contractors and building safety managers.
The Draft Bill also amends the Building Act 1984 by increasing time limits for prosecution for non-compliance with section 35A (time limit for prosecution for contravention of building regulations) and 36 (notice for removal or alteration of offending work) from two years and 12 months, respectively, to 10 years and introduces new powers to prosecute for offences committed by a corporate body with the "consent or connivance" of a director, manager or officer, or by their neglect
Changes to improve building fire safety are always welcomed and the events of the last few years have demonstrated that the exiting building safety regime required significant improvement.
The changes proposed are wide ranging. The introduction of measures such as the 'golden thread' of accurate, upto-date and easily accessible fire and safety information of a building throughout its full lifecycle is a practical and sensible development (notwithstanding potential future technology/compatibility issues).
However, the efficacy of the HSE taking on further responsibility as the Building Safety Regulator does raise some concerns, not least in respect of capacity.
In addition, the imposition further far reaching obligations on designers and contractors for building fire safety, in particular the requirement to make a declaration that the building complies with building regulations, will be of significant interest to those affected and will potentially have significant impacts on future working practices.
Originally published 31 July, 2020
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