Building Safety: The Overhaul Continues

On 19 January 2021, the Housing Secretary Robert Jenrick announced that a new national regulator was to be established to ensure that materials used to build homes are safe. The Regulator for Construction Products (RCP) will have strong enforcement powers, including:

• the power to remove any product from the market that presents a significant safety risk;
• the ability to conduct its own product testing when investigating concerns; and
• the power to prosecute companies who flout the rules on product safety.

The RCP will operate within the Office for Product Safety and Standards and will see a shift in focus from Trading Standards, which has typically been the enforcing authority in relation to the present regulatory regime on product safety. The RCP will, however, work with Trading Standards as well as the Building Safety Regulator (BSR) to encourage and enforce compliance.

The creation of the BSR is, of course, a key component of the Government’s reforms of the building safety system following the Grenfell Tower tragedy and the recommendations in Dame Judith Hackitt’s report from her independent review into building regulation and fire safety. The BSR and its functions form part of the draft Building Safety Bill (the “Bill”) published in July 2020, which has been described by the government as “the biggest change to our building safety regime for 40 years”.

Most recently, on 16 February 2021, the Health and Safety Executive (HSE) announced the appointment of Peter Baker as Chief Inspector of Buildings to establish and lead the new Building Safety Regulator (BSR). But what will the Bill mean for you and what powers will the BSR have?

Which buildings are within the scope of the Building Safety Bill?

The Bill will apply to what are termed “high-risk buildings”. Whilst it is not yet clear which buildings these will be, it is expected to be those of 18 metres or 6 storeys or more in height. Certain buildings, such as hotels and residential care homes, are expected to be exempt.

How will high risk buildings be assessed?

There will be three “gateways” at key points of the construction cycle for buildings termed high-risk. Before you can pass through one gateway to the next, the BSR will require evidence that the relevant standards of the previous gateway have been satisfied.

• Gateway 1 – at the planning application stage. BSR will consult with stakeholders to assess various design matters like fire safety and water supply.

• Gateway 2 – at the construction stage. Gateway 2 provides a “hard stop” where construction cannot begin until the regulator is satisfied that the duty holder’s design meets safety requirements.

• Gateway 3 – at the management stage. All the prescribed documents and information (Hackitt’s “golden thread” of information) must be handed over to the Accountable Person (AP). Duty holders will also be required to submit “as-built” information to the BSR.

Who will have duties under the Building Safety Bill? 

Along the lines of the Construction (Design and Management) Regulations 2015, duty holders include the Client, the Principal Designer at the design phase and the Principal Contractor at the construction phase. Duty holders will be required to submit key information to the BSR to demonstrate how the building, once built, will comply with the requirements of building regulations.

Accountable Persons

The AP (usually the owner) is the person with legal responsibility for building safety at the point of occupation of a building. The AP will also be responsible for registering buildings as “high-risk buildings” and making the application for a Building Assurance Certificate.

What role will the BSR play?

The BSR will have wide-ranging duties and functions, including taking over the building control regime for high-risk buildings as detailed above, enforcing sanctions for non-compliance, improving the competence of those working on such buildings and overseeing the safety of those buildings in occupation.

Similar to the HSE’s Fee for Intervention scheme, the regulator will be self-funded from the fees and charges it will levy; however, the level of those fees is yet to be determined.

What will the Sanctions be?

The Bill will be the most significant regulatory reform in the construction sector for years, strengthening existing sanctions as well as introducing new ones.

• Prosecutions for contravention of building regulations are to be extended from two years to ten years and the requirement to correct non-compliant work from one year to ten years.

• Additional breaches which could result in criminal sanctions are:

• Failing to appoint an AP or building safety manager as soon as practicable with skills and knowledge to carry out the role.
• Failing to register a high-risk building with the BSR before it becomes occupied.
• Failing to provide information to the AP.
• Providing false or misleading information to the BSR.
• Obstruction of authorised officers, such as blocking the BSR from carrying out an inspection.
• Failing to provide information or documentation to the BSR.

Penalties include up to two years in prison, unlimited fines or both.

• The BSR will be able to issue compliance notices if there has been, or is likely to be, a breach of building regulations, as well as stop notices during the design and construction phase that require work to be halted until serious non-compliance is addressed. There will be applicable penalties for contravention of either notice.
• It will be obligatory to report to the BSR any structural and fire safety occurrences that could cause a significant risk. Businesses will accordingly need to put in place internal processes to enable them to comply with their reporting obligations.
• The BSR will also have the power to appoint a “special measures manager”, replacing the AP and building safety manager as being in control of a high-risk building where issues have been uncovered.
• Similar to s37 of the Health and Safety at Work Act 1974, in respect of offences committed by a corporate entity, those in senior roles in companies can also be liable if an offence is committed with “their consent or connivance or is found to be attributable to their neglect”
• Perhaps most importantly, the Bill makes it an offence for an AP for a high-risk building to contravene, without reasonable excuse, any relevant requirement where that failure places one or more people in or about the building at critical risk. The scope of the Bill is accordingly extremely wide with the possibility for prosecution incredibly broad.

What will the insurance ramifications be?

The scope of appetite among insurers to cover those working on high-risk buildings, and the consequential effect on prices, remains to be seen. Either way, the management of high risk buildings is likely to be an extraordinarily expensive, difficult and time-consuming task with a heavy weight of responsibility on duty holders, in particular the AP.

Conclusion

There is still some time to get your house in order! The Building Safety Bill is not expected to come into force until 2023. We will continue to monitor progress of the Bill through Parliament; however, should you have any immediate queries, please do not hesitate to contact Kathryn Turner.