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Building Safety Bill

Overview

The draft Building Safety Bill (the “Bill”) published last month makes significant amendments to the Building Act 1984 and overhauls the building control regime. It proposes a new building safety regime to apply to all higher-risk buildings.

The Bill does not define higher-risk buildings, but from previous government consultations it is expected to apply to residential buildings over six storeys or 18 metres tall. There are broad powers in the Bill to further define this term and extend it to other types of tenanted buildings. Existing buildings that qualify will be brought within the new regime on a phased basis.

The Bill is very much in draft form. In addition to having to pass through the various Parliamentary stages, there are numerous elements which will require supporting legislation and guidance before it can take effect. At this stage it is not clear how the transition period will work, but below are highlights of the significant aspects of the Bill.

Building Safety Regulator

At the heart of the new regulatory framework is the creation of the Building Safety Regulator (“BSR”). The BSR will sit within the Health and Safety Executive under the Health and Safety at Work etc. Act 1974, which has already been amended to reflect this new role.

The functions of the BSR are incredibly broad. The BSR will be responsible for implementing the new regulatory regime for high-risk buildings and will monitor the safety and performance, but it will also:

  • have authority to establish three committees: (1) Building Advisory Committee which will replace the Building Regulations Advisory Committee for England; (2) Committee on Industry Competence; (3) a Residents’ Panel made up of residents of higher-risk buildings and relevant individuals; and
  • have the power to enforce its role by prosecuting existing Building Act 1984 offences and new offences under the Bill.

New Safety Regime for Higher-Risk Buildings – construction or refurbishment phase

The BSR will be responsible for all regulatory decisions under the new regime during the design, construction, refurbishment, and occupation stage of all higher-risk buildings.

Under the Bill, those constructing or refurbishing higher-risk buildings will be required to seek fire and safety approval from the BSR during three phases or “gateways”:

  • Gateway 1: the planning application stage;
  • Gateway 2: the initial building control stage before works commence. This gateway provides a “hard stop” where construction cannot begin until the BSR is satisfied that the duty holder’s design meets safety requirements; and
  • Gateway 3: the completion / final certificate phase pre-occupation.

Five categories of “duty holders” have been created who will have accountability and statutory responsibilities for managing risk across the design, construction, refurbishment and occupation of the building on an ongoing basis. These categories reflect the duty holders under the Construction (Design and Management) Regulations 2015, specifically the client, principal contractor, principal designer, contractor and designer. The Bill allows the government to introduce competence requirements for these duty holders by way of supporting building regulations and guidance to clarifying precisely what is required. 

The duty holders will be responsible for providing to the BSR at Gateway 3 all prescribed documents and information on completion of the building.  The requirement to create, collate and share prescribed documents and information is intended to satisfy the Hackitt review’s recommendation that there should be a “golden thread” of information running through the life cycle of every higher-risk building. It is expected that this will be an electronic record to comply with building information modelling (BIM) standards.

New Safety Regime for Higher-Risk Buildings – post completion/occupation stage

The new regime post completion or occupation stage centres around two new roles: (1) Accountable Person; and (2) the Building Safety Manager.

All higher-risk buildings will need to be registered with the BSR by the Accountable Person (usually the owner of the building). The Accountable Person will also have an ongoing duty to assess and report on the building safety risk and take measures to prevent the occurrence of a major incident. To support them in managing fire and structural safety risks, the Accountable Person must appoint a competent Building Safety Manager. 

As part of the “golden thread” of information, the Building Safety Manger must provide the BSR with certain information as part of the continuing mandatory reporting obligations. This mandatory reporting obligation will continue to apply to duty holders during the occupation and building life cycle.

There is also a requirement to engage and develop a strong partnership with the residents to keep the building safe through greater transparency and complaints handling. Whilst the emphasis of the Bill is on duties of the Accountable Person and Building Safety Manger, there are positive obligations on residents of higher-risk buildings including the requirement to take reasonable steps to avoid damaging any relevant safety items.

The Bill also includes new rules for the way leaseholders of higher-risk buildings pay for fire safety works and remediation of building defects by introducing a Building Safety Charge. This new Building Safety Charge for leaseholders will be separate from the service charge bill and will cover the costs of building safety work and the monitoring and management of day-to-day safety in the building.

New requirements for all buildings

The Bill creates a unified regime for building control professionals for all building works. The BSR will establish and maintain a register of building inspectors and building control approvers. Any current ‘approved inspectors’ will need to register as ‘building control approvers’ if they wish to continue undertaking building control work. Registered building control inspectors will be able to provide advice to local authorities or registered building control approvers overseeing building work.

The BSR will hold and maintain a register of competent principal designers, principal contractors and building safety managers, and new competence requirements will apply to the proposed new roles, as well as to a wider range of professionals and tradespeople.

The BSR will assist and encourage competence among and throughout the built environment industry including registered building inspectors.

The most significant amendments to the 1984 Building Act - which applies to all building work - are the new sanctions which include:

  • increasing time limits for prosecution for non-compliance with section 35A (time limit for prosecution for contravention of building regulations) and section 36 (notice for removal or alteration of offending work) from two years and 12 months, respectively, to 10 years;
  • new criminal liability for offences committed by a corporate body with the “consent or connivance” of a director, manager, or officer, or by their negligence;
  • serving Compliance Notices requiring non-compliances to be remedied, issuing Stop Notices requiring immediate cessation of ongoing work and the powers to enter sites or buildings to check compliance. There will be penalties for contravention of such notices; and
  • penalties for giving false or misleading information will attract up to two years in prison, unlimited fines or both.

Other Amendments

In addition to the new framework, the Bill also sets out the basis for:

  • changes to the construction product regime: all construction products marketed in the UK will fall under the regulatory regime and the Bill provides powers for any products posing a risk to be withdrawn from the market;
  • increasing the competence of architects: the Bill empowers the Architects Registration Board to monitor architects’ competency, setting relevant criteria and removing an architect from the register for failures; and
  • establishing a new homes ombudsman aimed at providing a means of redress for owners of newly built homes. The Bill empowers the government to require developers to join the new homes ombudsman scheme, set a code of practice and set sanctions for breach.

Commentary

The Bill sets out fundamental changes to building safety regulations and has received much welcome support from construction industry bodies.

Given scale and complexity of the proposed new regime, the Bill will go through a period of pre-legislative scrutiny and stakeholder consultation over the summer, which may lead to some amendments.

Whilst it will take time before the Bill and secondary legislation to come into force, there is a substantial amount of new information and regulation, and all professionals in the sector should take positive action now to familiarise themselves with the proposals.

We will keep you updated on the changes arising from the pre-legislative scrutiny stage, but if you have any questions on how the proposals will affect you and your business, please contact us.

11 August 2020

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DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

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