The draft Building Safety Bill was published on 20th July 2020 to bring forward reforms of the building and fire safety system. This follows an independent review of building regulations and fire safety conducted in May 2018 by Dame Judith Hackitt. As a respected expert in building safety, Dame Judith was commissioned by the government to carry out the review following the horrific Grenfell Tower fire in June 2017, which claimed 72 lives.
Within the review, the current regulatory system covering high-rise multi-occupied residential buildings was found not fit for purpose. Consequently, Dame Judith outlined a new approach to managing fire and structural safety risks in high-rise multi-occupied residential buildings. This would involve establishing a new regulatory regime to achieve a change in culture within the fire safety and built environment sector.
The government committed to take forward all of Dame Judith’s recommendations and subsequently published a ‘Building a Safer Future’ consultation in June 2019, which provided their proposals for delivering the reforms. In order to bring these reforms into effect, the draft Building Safety Bill was published.
“This is a significant milestone on our journey to fundamentally improving building safety and delivering real change that will keep people safer in their homes. I remain committed to making sure we get this right, which is why I will be publishing the draft Bill for scrutiny and improvement before it is introduced in Parliament. I am also calling on the industry to actively prepare for these changes now. It is vital that the sector moves in step with us, to provide confidence and reassurance to residents that their safety is firmly at the heart of everything we do.” Housing Secretary Robert Jenrick
What is a draft Bill?
Draft Bills are issued for consultation before being formally introduced to Parliament. This allows proposed changes to be made before the bill’s formal introduction[1] in the House of Commons or the House of Lords. Following Parliament approval, the Bill will be presented to the Queen for her formal agreement. Subsequently, the Bill becomes an Act and the powers come into effect. Therefore, the proposals outlined in the draft Building Safety Bill are subject to change based on parliamentary scrutiny and engagement with stakeholders.
Building Safety Bill objective
As a fundamental reform of the building safety system, the draft Bill will remedy the systematic issues found by Dame Judith, thereby strengthening the entire regulatory system for building safety. In order to facilitate this, new and enhanced regulatory regimes for building safety and construction products will be implemented and residents will be given a stronger voice in the system.
With the adoption of an ‘accountable person’ set out in the Bill, the government intends to ensure that there will always be someone responsible for the safety of residents in their buildings. Furthermore, developers, property managers and building owners will be obligated to take greater responsibility for the safety of residents in their buildings. Thus, a culture of accountability and responsibility is encouraged.
The Bill covers the performance of all buildings as well as the management of fire and structural safety risks in new and existing buildings in scope. Reforms will apply to England only, with the exception of those relating to construction products and the competence of architects, which will apply across the United Kingdom.
“I welcome this draft Bill as an important milestone in delivering the fundamental reform this industry needs to make residents and buildings safer. It meets the ambitions and recommendations set out in my review. And industry must be in no doubt that it is not enough to wait for the Bill to become law before they implement changes; we expect them to start taking action now.” Dame Judith Hackitt
Described by building safety and fire minister Lord Greenhalgh as, “the biggest changes to building safety legislation for nearly 40 years”, it’s no wonder that the draft Building Safety Bill spans a whopping 334 pages. This certainly makes for a time-consuming read, so, we’ve extracted some of the key points for those of us with busy schedules and summarised them below.
The draft Building Safety Bill overview
The draft Building Safety Bill is divided into five parts as follows:
Part 1 – Introduces the draft Building Safety Bill (much of which we’ve already covered above).
Part 2 – Provides provisions regarding the Building Safety Regulator and its functions together with definitions of “building safety risk” and “higher-risk building”.
Part 3 – Makes several amendments to the Building Act 1984 as it applies in relation to England.
Part 4 – Imposes duties on accountable persons and building safety managers.
Part 5 – Provides provisions for a ‘new homes ombudsman’ and the regulation of construction products and architects.
Part 2 – The building safety regulator
While a building safety regulator has already been set up within the Health and Safety Executive, the draft Building Safety Bill fully establishes the role. The regulator will, therefore, enforce a new, more stringent set of rules for high-rise residential buildings of 18 metres or more or taller than six storeys. They will also be empowered to hold rule-breakers accountable and to take firm action against those who fail to comply at the design, construction and occupation phases of a building’s lifecycle.
Building safety regulator objectives
The building safety regulator has two main objectives:
- Secure the safety of people in or about buildings in relation to risks arising from buildings; and
- Improve the standard of buildings
Building safety regulator duties
In order to meet these objectives, the regulator has the following duties:
- Facilitate building safety in relation to higher risk buildings – provide assistance and encouragement to persons it considers appropriate with a view to facilitating the security and safety of people in or about higher-risk buildings.
- Keep safety and standards of buildings under review – including the safety of people in or about buildings in relation to risks arising from buildings, together with the standard of buildings.
- Facilitate improvement in competence of industry and buildings inspectors, with a view to improving the competency of persons in that industry or members of that profession.
- Make proposals to the Secretary of State for the making of regulations following consultation with persons the regulator considers appropriate.
- Establish and operate a system for the voluntary giving of information to the building safety regulator or to make arrangements for a person to establish and operate such a system.
- Establish a building advisory committee who will give advice and information to the regulator about matters connected with any of the regulator’s building functions.
- Establish a committee concerned with the competence of persons in the built environment industry – they will analyse, research and monitor industry competence, advise the regulator and improve competence.
- Establish and maintain a resident’s panel consisting of residents of higher-risk buildings that the regulator considers appropriate, who will give advice to the regulator. The regulator must consult this panel before issuing or revising guidance to residents of higher-risk buildings
Increased sanctions
The building safety regulator will be able to take advantage of toughened existing powers and new powers to ensure compliance with the measures outlined in the Bill. Most notably, the time limit for prosecution in relation to non-compliance will be extended from two years to ten years, and from one year to ten years for section 36 notices, which require correction of non-compliant work.
New powers, on the other hand, include the ability to prosecute all offences in the Building Safety Bill and the Building Act 1984. Furthermore, the prosecution will extend to the person responsible for non-compliance issues e.g. a company director or manager together with the corporate body. The regulator will also be able to hold badly performing building control bodies to account and ban or remove them from the inspector’s register where necessary.
To facilitate the set-up of the building safety regulator and in order to recruit staff, the government is providing an extra £16.4 million.
New definitions
Building safety risk definition
‘A risk to the safety of persons in or about a building arising from the occurrence of the following:
- Fire
- Structural failure
- Any prescribed matter’
Higher-risk building definition
‘A building of a prescribed description.’ This definition has been left rather broad to enable flexibility in defining higher-risk buildings. If requested, the building safety regulator must provide advice to the Secretary of State as to whether a specified description of a building should be a higher-risk building. Furthermore, the Secretary of State must consult the regulator before making regulations unless the regulator recommended the regulations
Part 3 – Amendments to the Building Act 1984
The draft Bill contains numerous pages of amendments to the Building Act 1984, of which, the following are of major significance:
- The regulator will be required to establish and maintain registers of building control approvers and building inspectors. The aim of this is to improve competence levels in the building control sector.
- To avoid duplication of regulation, the building safety regulator (rather than local authorities) will be responsible for all building regulations matters when building work is undertaken on higher-risk buildings, (not just fire and structural safety matters). Therefore, it will be the building control authority for all building work on higher-risk buildings, or for work which leads to a building becoming a higher-risk building, for example; the addition of extra storeys to an existing building, or ceasing to be a higher-risk building with the removal of storeys from the building or change of use.
- An entirely new provision in the regulatory regime will regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment of existing buildings.
- All duty holders, including existing duty when buildings are designed, constructed or refurbished holders identified in CDM 2015, will have formal responsibilities for compliance with building regulations when buildings are designed, constructed or refurbished. CDM 2015 defines these duty holders and imposes duties on them including appointing the right people for the work and having suitable arrangements to ensure the project is carried out in a way that secures health and safety.
- The time limit during which enforcement action can take place in respect of a contravention of building regulations has been extended from two years (section 35A – prosecution) or twelve months (section 36 – notice requiring rectification of non-compliant work) to 10 years.
- To stop non-compliant building work from being continued or completed, stop notices are being introduced. Thus, ensuring that each stage of the construction process is compliant before moving onto the next.
Part 4 – imposing duties on accountable persons and building safety managers
Achieving greater accountability in the high-rise building sector is a fundamental element of the draft Building Safety Bill. As such, part 4 of the Bill implements a new ‘duty holder’ system in every building, which aims to ensure that the person or entity that creates a building safety risk, in each phase of a building’s lifecycle, is responsible for managing that risk. For example, the duty holder in the design phase of the build will be the principal designer, while the principal contractor will be the duty holder in the construction phase.
At the handover of each phase (described in the Bill as ‘gateways’), the regulator will carry out an assessment to ensure that building safety aims are being met. Once the building is ready for occupation, the duty holder will typically be the owner of the building, who will be known as ‘the accountable person’. The accountable person’s first task will be to secure a building safety assurance certificate before residents move in. The certificate will only be issued once the regulator is happy that the accountable person meets statutory obligations.
The accountable person will also have a responsibility to register the building with the building safety regulator. For new builds, the application must be made before the building becomes occupied and within the prescribed period under section 63. If the building is already occupied, the application must be made in the prescribed circumstances and within the prescribed time limit set out under section 65. Failure to comply is an offence, which is punishable by up to two years imprisonment or a fine (or both).
Once awarded and as soon as reasonably practicable, the accountable person must display the buildings assurance certificate in a conspicuous area in the building. Their primary function from then on will be to ensure the safety of those living in the block. To facilitate this, they will need to effectively perform a number of duties.
Accountable person duties
- Assess building safety risks relating to the building at regular intervals and when requested by the regulator.
- Take all reasonable steps to prevent a major incident occurring as a result of a building safety risk materialising and to reduce the severity of the incident.
- Prepare a safety case report containing their assessment of the building safety risks relating to the building, and any steps that have been taken in relation to those risks. They must then notify the regulator of the report.
- Ensure that there is adequate insurance against loss arising as a result of a building safety risk materialising.
- Establish a system for the investigation of relevant complaints relating to the building safety risks or compliance by the accountable person or building safety manager for the building with any of their duties.
- Listen and respond to resident’s concerns regarding building safety.
This process will also be brought in for existing buildings.
The building safety manager
A building safety manager must be appointed by the accountable person to support them with the day-to-day management of the building and to ensure that safety standards are adhered to. They must have the skills, knowledge, experience and behaviours to effectively carry out the functions of a building safety manager. If the building safety regulator does not believe that these competencies are met by a candidate, they can block their appointment. Failure to comply with this requirement is a criminal offence, which is punishable by a term of imprisonment for up to two years.
Building Safety Charges
With a plethora of new safety regulations to comply with, it stands to reason that leaseholders, who are typically responsible for paying for safety measures, should be given greater clarity concerning the costs involved. As such, the draft Bill includes a new ‘building safety charge’ which will be separate from the service charge, in a bid to make costs “readily identifiable and accounted for”.
A building safety charge can be demanded from leaseholders in respect of building safety costs. Building safety costs are the costs or estimated costs incurred or to be incurred by or on behalf of an accountable person (typically the building owner/freeholder) for a higher-risk building in connection with the person carrying out prescribed building safety measures. The charge must be demanded following the prescribed process and by providing the required information to leaseholders within the specified time period.
Leaseholders can refuse to pay if this procedure is not followed correctly or if the charge is deemed unreasonable. However, under the new rules, leaseholders will be required to pay the fire safety charge within 28 days of when the bill was issued and will also be required to cover some of the new measures brought in under the Bill, such as paying for a building safety manager and the day-to-day management of the building.
Sums received in respect of building safety charges must be held by the accountable person as a single trust fund or in two or more separate trust funds at a relevant financial institution.
Part 5 – The new homes ombudsman scheme and regulation of construction materials and architects
The new homes ombudsman scheme
The draft Building Safety Bill introduces a new homes ombudsman scheme for which all developers will be required to obtain membership. This will provide new build homebuyers with an official body for which to direct their complaints against developers in respect to the quality of the construction of their home. The ombudsman will investigate any such claims and will hold developers to account where fault is found and requesting that they pay compensation.
To assist with investigations and compliance, the Secretary of State may issue or approve a code of practice about the standards of conduct and standards of quality of work expected of members of the scheme.
Regulation of construction products and architects
Another significant inclusion in the draft Building Safety Bill are new powers to better regulate construction products and architects.
Regulation of construction products
The draft Bill stipulates that all construction products marketed in the UK will fall under a regulatory regime, allowing them to be withdrawn from the market if they present a risk. Where products do not fall under the existing regulatory regime and are not included on the statutory list of safety-critical products, the Bill takes powers to make regulations requiring manufacturers to ensure that the products they supply are safe.
Enforcement for all the existing and new parts of the regulatory regime will fall to the Secretary of State, who will take over from Trading Standards. Furthermore, the Bill creates powers to generate new civil penalties and criminal offences for breach of the new regulations.
Regulation of architects
To ensure that the competency of architects is effectively monitored, they will be required to register with the Architects Registration Board. This registration will also permit the title of ‘architect’ to be used by a person. The Architects Registration Board will set the registration criteria, in conjunction with other relevant bodies (such as the Royal Institute of British Architects) and after consultation with the sector.
If an architect does not meet these requirements or is found to be guilty of professional misconduct or serious professional incompetence with regards to the criteria, the Architects Registration Board will have the power to remove them from the Register. The draft Bill also amends the Architects Act 1997 to allow disciplinary orders to be listed alongside the architect’s name on the Register, thus increasing transparency for consumers wishing to procure architectural services.
Key takeaways from the draft building safety bill
- A building safety regulator will enforce a new, more stringent set of rules for high-rise buildings and will have new powers to hold rule-breakers accountable.
- A new duty holder system ensures that there is a specific person responsible for risks at each phase in a building’s lifecycle, who can be held accountable.
- Once a building is ready for occupation, the duty holder (typically the freeholder) will become the ‘accountable person’ and will be obligated to ensure the safety of residents in the building.
- The accountable person must appoint a competent building safety manager to assist with the management of building safety.
- A new building safety charge will allow the accountable person to collect sums from leaseholders in respect of building safety costs.
- The new homes ombudsman scheme provides new homeowners with a channel through which to complain about the construction of their homes, and for developers to be investigated and held accountable.
- Architects must register with the Architects Registration Board so that their competencies can be monitored, or they will not be permitted to call themselves architects.
Final thoughts
It will undoubtedly take numerous debates and a substantial amount of time to finalise the draft Building Safety Bill before it is presented to parliament. However, so long as the fundamental elements proposed in the Bill remain, the approved Building Safety Act will unequivocally enhance high-rise building safety standards in England. Nevertheless, the government is committed to seeing these reforms through and making changes now, to improve the safety of residents. As such, they have already made several highly positive steps along the journey;
- Made £600 million available to find remediation works to remove and replace unsafe cladding, with a further £1 billion to be made available across 2020/2021
- Launched a consultation on the ban of the use of combustible materials in the external walls of high-rise buildings
- Begun a wholescale review of the Housing Health and Safety rating System
- Introduced a Fire Safety Bill
- Worked with the Early Adopters Group to establish the Buildings Safety Charter
- Announced that it will provide £20 million for Fire and Rescue Services
Interested in legislation? Why not read, ‘New permitted development rights for blocks’.
[1] (Parliament.uk) https://www.parliament.uk/about/how/laws/draft/
