Our team: Olivia Bateman
In July the Government published the draft Building Safety Bill, to comprehensively overhaul building safety legislation in the wake of the Grenfell fire, and the independent review subsequently undertaken by Dame Judith Hackitt.
The legislation is intended to ensure that fire safety is considered throughout the design and construction process, and when a building is in occupation, and although many of the changes relate to new duty holders and ‘higher risk’ buildings, the changes will impact on all buildings and will have implications for all landlords and tenants.
The changes apply to England, but similar legislation and changes will also apply to Scotland, Wales and Northern Ireland.
What are the Key Changes?
Let’s look at these in turn:
The Building Safety Regulator
The new role of Building Safety Regulator is being established as part of the Health and Safety Executive and will have 3 broad functions:
Duty Holders and Professionals
Under the CDM Regulations (and now the Bill) we have the following construction duty holders, namely:
They will have new responsibilities for fire and structural safety. The Bill introduces 2 new duty holders for higher-risk buildings (both new build and existing):
The Accountable Person is the duty holder in occupation. Where there is a complex property holding structure, advice may be needed to determine which entity will be the Accountable Person and there may be more than one Accountable Person per building. In general terms, the Accountable Person will be the entity responsible for the repair of any part of the common parts. ‘common parts’ includes the structure and exterior of a building, as well as any communal areas.
The Building Safety Manager is appointed by the Accountable Person to run the building safely on a day to day basis. Both have on-going statutory obligations.
The ‘Golden Thread’
The Bill will require a ‘golden thread of information’ to be held digitally, to capture the original design and any subsequent changes to a building over time. The intention is that the right people will have the right information at the right time, to ensure that building safety risks are managed throughout the building’s lifecycle. For new builds, the duty holders must collate and maintain this information during the design and construction process and, once practical completion is achieved, this information must be handed to the Accountable Person.
Obligations for Higher-Risk Buildings
A ‘higher-risk building’ is currently defined as any multi-occupied residential building with a height of 18m or more (above ground), or which contains more than 6 storeys. Student accommodation and serviced apartments will fall within the definition (if they satisfy the height requirements), but hospitals, hospices, prisons and care homes are currently excluded. It is likely that this definition will be expanded however in time, after an initial transition period.
So what are the obligations?
Higher-risk Buildings Under Construction
Higher-Risk Buildings in Occupation
The New Homes Ombudsman Scheme
Developers will be required to join the scheme and comply with its code of practice or face sanctions.
New terms will be implied into long leases (i.e. over 21 years). These will require a landlord to carry out safety measures. They will also require a ‘building safety charge’ to be kept separate from the service charge.
The Regulator will have a combination of toughened existing powers and new powers to enforce compliance with the new regime, including the ability to issue stop notices, compliance notices and improvement notices.
Failure to comply with compliance and stop notices will be a criminal offence with up to 2 years in prison and an unlimited fine.
The Regulator will have the power to revoke a Building Registration Certificate, veto the appointment of an unsuitable Building Safety Manager, and prosecute duty holders (including the Accountable Person).
Where an offence is committed by a corporate body with the “consent or connivance of a director or manager etc. or is attributable to their neglect”, that individual will also be liable to prosecution.
When is this all going to happen?
The draft Bill has been published for ‘pre-legislative scrutiny’ before being introduced to Parliament, and there is currently no timetable for when it will come into force. However, it is coming, and given the major changes being made, the construction industry is actively being encouraged to start making changes now.
Developers will need to adapt to a new and more bureaucratic regime.
The involvement of the Regulator at every stage of a development will represent a significant challenge to the industry in terms of the potential for additional cost and delay. Design changes during the construction phase in particular could result in significant delays and additional cost.
We will be issuing further updates and articles on the draft Building Safety Bill in the coming months.