Last week the Government published the new Building Safety Bill nearly a year after a draft version was revealed.
The Housing Secretary, Robert Jenrick, described the proposed legislation as creating ‘generational change’ and setting out a ‘clear pathway for the future on how residential buildings should be constructed, maintained and made safe’.
The new building safety bill, which will have to pass through the House of Commons and House of Lords before it passes into law, will establish a new Building Safety Regulator to oversee a much stricter safety regime for high rise homes.
Housing Secretary Rt Hon Robert Jenrick
What does the new bill mean for those involved in the construction and management of residential blocks?
The changes being introduced in the bill are wide-ranging and will have a huge impact on those involved in the construction and management of residential blocks. Whilst some of the proposals were contained in the draft published last year, the new bill provides more detail on how exactly these changes will be implemented and when we can expect them.
We have summarised the key changes being introduced in the new legislation below.
Building Safety Regulator
One of the central recommendations is the establishment of a new, national Building Safety Regulator. This comes more than three years after Dame Judith Hackitt called for a new regulatory body to oversee the built environment as part of her review of regulations and fire safety following the Grenfell tragedy.
The Building safety regulator will have three main functions :
The Health & Safety Executive (HSE) announced the appointment of Peter Baker as the Chief Inspector of Buildings to lead the new Building Safety Regulator (BSR) in February 2021.
The regulator will have a range of enforcement powers in relation to high rise buildings. The bill also creates a duty for the regulator to maintain three committees to advise on building functions – a residents’ panel, and industry competence committee and a building advisory committee.
Stringent Regime for Higher Risk Buildings
Higher-risk residential buildings will be subject to a more stringent regulatory regime during construction and occupation, coupled with enhancements that apply to all buildings.
Initially the proposed definition of ‘higher-risk building’ will be all multi-occupied residential buildings of 18 metres or more in height, or have at least seven storeys and two residential units. This will include student accommodation but not, for example, residential care homes, prisons, or temporary accommodation such as hotels.
The Bill allows for this definition to be broadened by the Secretary of State in the future. The more stringent regime includes the provision for :
A new dutyholder regime, introducing accountability and statutory responsibility, will mirror those appointments required under the Construction (Design and Management) Regulations 2015 (CDM 2015) such as Client, Principal Designer and Principal Contractor.
Based on the principle that the person or entity that creates a building safety risk should, as far as possible, be responsible for managing that risk across the design, construction and occupation of buildings on an ongoing basis.
For example, the principal designer will be responsible for the design phase and then the principal contractor will look after the construction phase. Responsibilities given to dutyholders will include sharing information and appointing people with the right skills and experience.
Gateways & Golden Thread
The building’s cycle will be split into different ‘gateways’ and the building owner must demonstrate compliance at each of these points, for example prior to construction beginning and prior to occupation.
The new regime also introduces the requirement for a ‘golden thread’ of digital building information that will be updated throughout a building’s lifecycle, including information such as material product details and inspection reports. This will apply to both new and existing buildings.
This lack of information passing from the different stakeholders at different aspects of a block’s lifecycle has proved to be a particular issue in recent years. Building owners and managers have been unable to find information around materials used on buildings, frustrating the EWS1 survey process in many instances.
Each high-rise building in the country will have an accountable person who will be responsible for ensuring statutory duties introduced in the bill are met. The obligations on the accountable person are expected to come into force within 12 to 18 months of the bill receiving royal assent (see the timeline for the legislation here).
Mandatory reporting to the new Building Safety Regulator will be introduced, alongside an ongoing duty on the accountable person for each high rise to assess the building safety risk relating to the parts of the building for which they are responsible and take all reasonable steps to prevent a building safety risk materialising.
This part of the bill also sets out a process by which residents can register their concerns on building safety by requiring the accountable person to create a resident engagement strategy and complaints procedure. Residents in turn will have clear legal responsibilities to keep in repair and proper working order any relevant items, take reasonable steps to avoid damaging any relevant safety item and comply with requests made by the Accountable Person.
The accountable person will also be expected to apply for a building assessment certificate, which confirms that they are meeting their duties, by submitting their aforementioned case report to the new regulator.
While the phrase ‘accountable person’ implies one single person will be responsible for this duty, the government said it recognises that a building will have multiple accountable persons.
Building Safety Manager
The Accountable Person must appoint a Building Safety Manager (BSM), to provide support in managing day to day fire and structural safety risks in the building.
This is an entirely new profession, and it is envisaged that building safety managers will be highly trained and competent people. The building safety manager will be in charge of a building, or up to 10 buildings, and it will be their role to assist in the management and oversight of the blocks they are responsible for and ensure they meet obligations.
This is expected to be one of the biggest changes for responsible persons managing blocks, with many building owners already trying to recruit for these new roles. In many cases this is proving difficult, due to a lack of clarity on exactly what type of competencies these managers will need and the scarcity of suitable qualified individuals driving up salaries for these roles.
Enforcement and tougher sanctions
The new regime envisioned by the Building Safety Bill is meant to be stringent, and it comes with tough sanctions for those who break the rules.
Directors or managers of companies responsible for the safety of high-rise residential buildings will be personally liable for failings, with new criminal offences for the most egregious cases carrying the potential for two-year prison sentences.
In particular, neglecting to register buildings with the Building Safety Regulator or not applying for a building assessment certificate when required could result in criminal action.
Where it has concerns with a block, the Building Safety Regulator will be able to investigate and issue compliance notices. If the problems are not rectified by a set date, that too will be a criminal offence.
Serious failings may result in a building being put into 'special measures', with a manager appointed by the regulator to take effective control of its safety.
Things will also get thorny where a developer attempts to start building work without gaining approval from the Building Safety Regulator. Again, this could lead to prosecution.
Criminal punishments may also ensue for those who attempt to exploit or frustrate the system, for example by providing the Building Safety Regulator with false or misleading information.
The regulator will also be able to investigate building control bodies, with the power to de-register private approvers that fail to meet standards and to recommend the government to take over a floundering council building control department.
The Government currently estimates up to 12 months before the Building Safety Bill receives Royal Assent, which it describes as Phase 1 of implementation.
Phases 2 consists of the introduction of the regulatory regime including changes to secondary legislation such as the Regulatory Reform (Fire Safety Order) 2005. This phase is expected to take 12 months following Royal Assent.
Phase 3 involves transition and implimentation of the regime. Whilst this phase does not envisage enforcement of the full regime for 18 months following Royal Assent, aspect of the obligations imposed by the regime are likely to be in place within by summer 2022.
Building Safety Bill - How we can help
At Anstey Horne we are one of very few Chartered Surveying Practices undertaking inspections of properties under the RICS EWS1 process. Since the EWS1 process was introduced in January 2020 we have inspected and reported on several hundred buildings containing thousands of individual apartments.
Our Building Consultancy team are also qualified CDM Principal Designers under the CDM Regulations 2015, with membership of the Association of Project Safety.
We provide Construction Supervisor services as the ‘custodian for quality’ under construction contracts ensuring that works are completed in accordance with the quality standards defined in the Works information.
Anstey Horne’s Building Consultancy team have a unique skillset that allows us to deliver the enhanced CDM role for construction work that falls within the scope of the proposed Building Safety Bill. We are also able to perform the entirely new role of Building Safety Manager.
Whilst the Bill is not expected to be in force until 2022, developments currently in planning will be in ‘scope’ of the new regime when construction begins in a few years’ time.
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For more information, see our article on Building Safety Legislation.
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