09 July 2021
Building Safety Bill published, outlining ‘biggest improvements to building safety in nearly 40 years’
The Building Safety Bill has been published, outlined by Housing Secretary Robert Jenrick as the next “key step in an extensive overhaul to building safety legislation”. The reforms are set to create “lasting generational change and a clear pathway for the future on how residential buildings should be constructed and maintained”, affirms the UK Government.
The Building Safety Bill, which was first announced in draft form in July 2020, has been published with the aim of giving residents more power to hold builders and developers to account and toughening sanctions against those who threaten their safety. It has been described as ‘the next key step in an extensive overhaul to building safety legislation.’
The Government has published a full transition plan for the Bill, here.
Who does Building Safety Bill apply to?
The provisions set out in the Building Safety Bill will apply to building owners and the built environment industry, such as those who commission building work and who participate in the design and construction process, including clients, designers and contractors.
The Bill creates powers to introduce new design and construction requirements that apply to high-rise residential buildings, hospitals, and care homes of at least 18 metres or at least seven storeys. The Bill also introduces new occupation requirements for existing and new high-rise residential buildings of 18 metres and above (or at least seven storeys).
Those involved in the commissioning, design, construction, or refurbishment of high-rise residential and other in scope buildings will have new formal responsibilities to comply with building regulations.
Powers within the Building Safety Bill will be used to make regulations that place duties on those who procure, plan, manage and undertake building work. These regulations will be made using secondary legislation and will be subject to consultation once the Building Safety Bill has gained Royal Assent.
When did the Building Safety Bill change?
The Bill was introduced to the House of Commons and given its First Reading on Monday 5 July 2021. MPs will next consider the Bill at Second Reading. The date for second reading [at time of writing] has not yet been announced.
What does Building Safety Bill mean?
The Building Safety Bill contains six parts and nine schedules addressing a range of issues relating to building safety and standards. The Bill makes a number of changes to existing legislation, most notably the Building Act 1984.
Some of the key provisions of the Bill include the following:
New Building Safety Regulator
The Health and Safety Executive (HSE) is established as the Building Safety Regulator, to underpin the key regulatory reforms in the new building safety regime. Headed up by Peter Baker and housed in the HSE, it will be responsible for overseeing the “safety and performance of all buildings,” ensuring that any building safety risks in new and existing high rise residential buildings of 18m and above are effectively managed and resolved, taking cost into account.
This will include implementing specific gateway points at design, construction and completion phases to ensure that safety is considered at each and every stage of a building’s construction, and safety risks are considered at the earliest stage of the planning process.
These changes will simplify the existing system to ensure high standards are continuously met, with a ‘golden thread’ of information created, stored and updated throughout the building’s lifecycle, establishing clear obligations on owners and enabling swift action to be taken by the regulator, wherever necessary.
The Government has published a full transition plan for the Bill, here.
Peter Baker, Chief Inspector of Buildings at HSE, welcomed the Bill’s introduction. He said it “will give HSE the tools to deliver its important role as the Building Safety Regulator and is an important step in setting out what will be expected of future duty holders.
“Everyone involved in higher risk buildings from design, construction and day-to-day operations will manage and control building safety in a way that is proportionate to the risks. This will ensure these buildings are safer for those who live in them and they have a stronger voice. I encourage duty holders to use the Bill’s introduction in preparation for the new, more rigorous regulatory regime.
“The Building Safety Regulator will continue to work with industry and others to deliver the new building safety regime to ensure that residents of higher risk buildings are safe, and feel safe, in their homes now and in the future.”
The Building Safety Regulator will have two objectives focused on securing the safety of people in and around buildings and improving building standards. It will also regulate in line with best practice principles including being proportionate, transparent, and targeting its activity at cases where action is needed.
The Building Safety Regulator has three core functions. These are:
- Implementing a new, more stringent regulatory regime for higher-risk buildings. This means being the building control authority in England in respect of building work on higher-risk buildings and overseeing and enforcing the new regime in occupation for higher-risk buildings. The Building Safety Regulator will have powers necessary to involve other teams including Fire and Rescue Services to assist it in making regulatory decisions.
- Overseeing the safety and performance of all buildings. This has two key aspects:
- Overseeing the performance of the building control sector. This will involve developing key performance indicators (KPIs) related to building control work, data collection and powers to impose sanctions for poor performance.
- Understanding and advising on existing and emerging building standards and safety risks including advising on changes to regulations.
- Assisting and encouraging competence among the built environment industry and registered building inspectors.
The Building Safety Regulator will be responsible for all regulatory decisions under the new regime during the design, construction, occupation, and refurbishment of higher-risk buildings.
The Bill provides the Building Safety Regulator with the power to establish and maintain committees to advise on building functions.
The Bill allows for a new dutyholder regime to be incorporated across the lifecycle of higher-risk buildings. This is 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. Many aspects of the regime will be taken forward through secondary legislation.
When buildings are designed, constructed or refurbished, those involved in the commissioning, design, construction or refurbishment process will have formal responsibilities for compliance with building regulations. These provisions will apply to all work to which building regulations apply, and these dutyholders will include those appointed under the Construction (Design and Management) Regulations 2015 (CDM 2015). The main dutyholder roles under CDM 2015 are:
- Client – Any person or organisation for whom a construction project is carried out, including as part of their business.
- Principal Designer – Appointed by the Client under CDM 2015, when there is more than one contractor working on the building project. Role is to plan, manage, monitor and coordinate the pre-construction phase, when most design work is carried out. The Principal Designer is in control of the pre-construction phase.
- Principal Contractor – Appointed by the Client under CDM 2015, when there is more than one contractor working on the building project. Role is to plan, manage, monitor and co-ordinate the construction phase. The Principal Contractor is in control of the construction phase.
- Designer – Carries on a trade, business or other undertaking in connection with which they prepare or modify a design or instruct any person under their control to prepare or modify a design.
- Contractor – Manages or controls construction work (e.g. building, altering, maintaining or demolishing a building or structure). Anyone who manages this work or directly employs or engages construction workers is a contractor.
Dutyholder roles may be fulfilled by either an individual or an organisation/legal entity. A dutyholder can hold more than one role in a building project.
The amendments to the Building Act 1984 in this Bill, coupled with existing powers both in the Building Act 1984 and in other legislation, will allow for the creation of a new Gateway regime. The aim is to ensure that building safety risks are considered at each stage of a new higher-risk building’s design and construction. In summary:
- Gateway one: Planning Gateway one will introduce a number of new requirements in the planning system. This will ensure fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving a high-rise residential building. Planning Gateway one will:
- Involve the HSE becoming a statutory consultee before permission is granted for development which involves or is likely to involve a high-rise residential building in certain circumstances.
- Require relevant applications for planning permission to include a fire statement to ensure applicants have considered fire safety issues as they relate to land use planning matters (for instance layout and access).
- Help inform effective decision-making by local planning.
- Gateway two requires the Building Safety Regulator to be satisfied that a building’s design meets the functional requirements of the Building Regulations. Construction duty holders will need to submit critical information to the Building Safety Regulator to demonstrate how the building, once built, will comply with the requirements of Building Regulations.
- Gateway three is equivalent to the current completion/final certificate phase. Gateway three begins when construction of the building is completed, and the building control body assesses whether the work has been carried out in accordance with the Building Regulations. All ‘golden thread’ documents and information on the final, as-built building must be submitted to the Building Safety Regulator. Gateway three is a ‘hard stop’ where the Building Safety Regulator will assess the application against applicable requirements of the building regulations, undertake final inspections of the completed building work, and issue a completion certificate on approval.
The Bill includes provisions to require the creation and maintenance of a golden thread of information. The intention is to ensure that the right people have the right information at the right time to ensure buildings are safe and building safety risks are managed throughout the building’s lifecycle.
An Accountable Person is defined as the dutyholder of a building during its occupation (after the building has passed Gateway three). This could be an individual, a partnership or corporate body. An Accountable Person’s responsibilities include:
- Registering a building with the Building Safety Regulator.
- Applying for a Building Assessment Certificate, which is issued when the Building Safety Regulator is satisfied the Accountable Person is complying with their duties under the Bill.
- Assessing (and revising as necessary) building safety risks and taking all reasonable steps to prevent the occurrence, and control the impact of, a major incident arising from building safety risks in or around the building.
- Preparing (and revising as necessary) a Safety Case Report for a building which contains their assessment of the building safety risks and the steps that have been taken to prevent a major incident.
- Keeping information on a building and ensuring it is up to date.
- Reviewing the risk assessments on which their arrangements for managing building safety risks and Safety Case Report are based.
- Appointing a Building Safety Manager.
Building Safety Manager
The Building Safety Manager must have the necessary skills, knowledge, experience and behaviours if they are an individual, and organisational capability where they are not, to carry out the functions assigned.
Duty to manage risks and safety cases
The Bill creates an ongoing duty on the Accountable Person to assess the building safety risks relating to their building, to take all reasonable steps to prevent a building safety risk materialising, and to limit the severity of any incident resulting from such a risk. Building Safety risks are defined in the Bill as risks to the safety of persons in or about buildings resulting from the occurrence of fire spread, structural failure and any other risk that may be prescribed by regulations in the future.
The Accountable Person will need to demonstrate how they are meeting this ongoing duty via their safety case and Safety Case Report, which they will be required to keep up to date. The safety case comprises the full body of evidence relating to the assessments and ongoing management of building safety risks.
The Accountable Person will be required to submit the building’s Safety Case Report to the Building Safety Regulator as part of the process for issuing a Building Assessment Certificate or on request from the Building Safety Regulator. A key part of the report will be the overview of the Accountable Person’s safety management system (SMS), which explains the policies, procedures and processes they have in place across the organisation to deliver continuous management of building safety risks.
The Safety Case Report should set out the building safety risks in the building and how these are being managed on an on-going basis, to ensure resident safety.
Building control reform
The Building Safety Regulator will be required to establish and maintain a register of building inspectors (individuals) and building control approvers (either organisations or individuals).
Individuals and organisations currently known as ‘Approved Inspectors’ who wish to continue undertaking building control work will need to register as ‘building control approvers’.
The role of a registered building inspector being introduced through this Bill is new. A registered building inspector will be able to provide advice to local authorities or registered building control approvers overseeing building work.
The Building Safety Regulator will be the building control body for higher-risk buildings.
Strengthened Fire Safety Order
The Bill includes provisions to strengthen the Fire Safety Order in order to support greater compliance and effective enforcement. The amendments will require that:
- The Responsible Person must record their fire risk assessment.
- The Responsible Person must not appoint a person to assist them with making or reviewing a fire risk assessment unless that person is competent.
- The Responsible Person must record their fire safety arrangements.
- For buildings consisting of two or more sets of domestic premises, the Responsible Person(s) must provide specific fire safety information to residents about relevant fire safety matters, and must keep records of the relevant fire safety matters.
- The Responsible Person must take reasonable steps to identify themselves to all other Responsible Persons in the same premises, inform them of their name and UK address and the part of the premises they consider themselves to be Responsible Person for and keep a record of that information.
- Departing Responsible Persons must provide specific relevant fire safety information they hold to incoming Responsible Persons for premises or parts of premises for which they are responsible, keeping records of the fire safety information.
- For higher-risk buildings in England, the Responsible Person must identify and co-operate with Accountable Persons in the same premises to enable them to carry out their duties under the Building Safety Bill.
- Increased financial penalties of unlimited fines apply for the criminal offences of impersonating an inspector, failing to comply with any requirements imposed by an inspector, and failing to comply with requirements relating to the installation of luminous tube signs.
- Article 50 of the FSO (recently amended by the Fire Safety Act 2021) which relates to the provision of guidance for Responsible Persons, be amended to expressly provide that the Court may take compliance or non-compliance with such guidance into account when considering offences of breach of the Order.
The Bill includes and creates other provisions in relation to:
- Construction products: for example, the Bill creates powers to make provision for regulation of all construction products placed on the UK market, and creates the concept of a “safety critical product”.
- Improving the competence of architects.
- Removal of the democratic filter.
- New Homes Ombudsman scheme.
Building Safety Bill: What’s changed?
The Building Safety Bill takes forward the government’s commitment to fundamental reform of the building safety system. The Bill gives effect to policies set out in the Building a Safer Future consultation response, published in April 2020.
The objectives of the Building Safety Bill are to learn lessons from the 2017 Grenfell Tower fire and to remedy the systemic issues identified by Dame Judith Hackitt’s review of building regulations and fire safety by strengthening the whole regulatory system for building safety.
The Bill seeks to achieve this by ensuring there is greater accountability and responsibility for fire and structural safety issues throughout the lifecycle of buildings in scope of the new regulatory regime for building safety.
High standards of safety
Housing Secretary Rt Hon Robert Jenrick MP said: “This Bill will ensure high standards of safety for people’s homes, and in particular for high rise buildings, with a new regulator providing essential oversight at every stage of a building’s lifecycle, from design, construction, completion to occupation.
“The new building safety regime will be a proportionate one, ensuring those buildings requiring remediation are brought to an acceptable standard of safety swiftly, and reassuring the vast majority of residents and leaseholders in those buildings that their homes are safe.”
The reforms will tackle bad practice head on, building on Dame Judith Hackitt’s review of Building Regulations and Fire Safety, which highlighted a need for significant cultural and regulatory change.
Under the proposals, the government is more than doubling the amount of time, from 6 to 15 years, that residents can seek compensation for substandard construction work.
The changes will apply retrospectively. This means that residents of a building completed in 2010 would be able to bring proceedings against the developer until 2025.
These reforms also include new measures which apply to those seeking compensation for shoddy refurbishments which make the home unliveable.
Hold to account those who break the rules
New measures in the Building Safety Bill introduced are said to:
- Ensure there are clearly identified people responsible for safety during the design, build and occupation of a high-rise residential building.
- Establish a Building Safety Regulator to hold to account those who break the rules and are not properly managing building safety risks, including taking enforcement action where needed.
- Give residents in these buildings more routes to raise concerns about safety, and mechanisms to ensure their concerns will be heard and taken seriously.
- Extend rights to compensation for substandard workmanship and unacceptable defects.
- Drive the culture change needed across the industry to enable the design and construction of high-quality, safe homes in the years to come.
Minister for Building and Fire Safety Lord Greenhalgh said: “The comprehensive steps we are taking today will ensure that industry and the regulatory system fully address the concerns raised in the ‘Building a Safer Future’ report by Dame Judith Hackitt.
“Though the overall risk of fire across all buildings remains low, we can’t be complacent – the more robust regime will take a proportionate and risk-based approach to remediation and other safety risks.
“And by increasing our measures of enforcement, we will make sure industry follows the rules – and is held to account when it doesn’t.”
The Bill will include powers to strengthen the regulatory framework for construction products, underpinned by a market surveillance and enforcement regime led nationally by the Office for Product Safety and Standards (OPSS).
The national regulator will be able to remove products from the market that present safety risks and prosecute or use civil penalties against any business that breaks the rules and compromises public safety.
The Bill also contains measures to protect leaseholders by providing a legal requirement for building owners to explore alternative ways to meet remediation costs before passing these onto leaseholders, along with evidence that this has been done.
This builds on the government’s commitment to fully fund the cost of replacing unsafe cladding for all leaseholders in residential buildings 18 metres and over in England, with an unprecedented £5 billion investment in building safety. This is alongside the introduction of a new levy and a tax to ensure that industry pays its fair share towards the costs of cladding remediation.
Developers will also be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to a homebuyer, including through the awarding of compensation. Developers who breach the requirement to belong to the New Homes Ombudsman may receive additional sanctions.
Chair of the Independent Review of Building Regulations and Fire Safety Dame Judith Hackitt said: “I am delighted that we have reached this important milestone for the Building Safety Bill. It is vital that we focus on getting the system right for the future and set new standards for building safety.
“Residents and other stakeholders need to have their confidence in high rise buildings restored and those who undertake such projects must be held to account for delivering safe buildings.”
National Fire Chiefs Council Chair, Mark Hardingham added: “We welcome this important Bill’s introduction as it will contribute to essential developments in fire safety.
“We are focused on working with government and partners to fix the broken building regime, make buildings safer and restore public confidence.”
Source: SHP Online
Further information can be found on the SHP website.