The Building Safety Bill – major changes coming for developers and managers of high rise buildings

Overview

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?

• the introduction of a new Building Safety Regulator;
• new Duty Holders, and additional duties and competence requirements for existing duty holders / professionals for all buildings;
• a requirement to maintain a ‘Golden Thread’ of safety information;
• new responsibilities and requirements for ‘Higher Risk’ Buildings which must be satisfied at every stage in a development or it cannot proceed;
• the creation of a New Homes Ombudsman scheme; and
• new implied terms in long leases.

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:

1. overseeing the safety and performance of all buildings – including overseeing building control bodies, and maintaining a register of approved building inspectors;
2. enforcing the new rules applying to higher-risk buildings; and
3. assisting and encouraging competence among the industry and registered building inspectors.

Duty Holders and Professionals

Under the CDM Regulations (and now the Bill) we have the following construction duty holders, namely:

• the Client;
• the Principal Designer;
• the Designer
• the Principal Contractor; and
• the Contractor.

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; and
• the Building Safety Manager.

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

• There will be 3 new ‘gateways’, intended to ensure that building safety has been adequately considered throughout a development.
  • Gateway 1 (planning) – each developer will be required to submit a ‘fire statement’ as part of its planning application, and the Regulator is now a consultee for all planning applications involving higher-risk buildings.
  • Gateway 2 (pre-construction). Work on site will not be allowed to commence until the Regulator is satisfied that the scheme will comply with the building regulations. This will require the developer to submit a full set of detailed drawings to the Regulator. Staged applications are allowed.  During construction critical safety management changes (e.g. including an additional staircase) will require prior approval by the regulator.
  • Gateway 3 (practical completion). Building control will assess compliance with the Building Regs., and once satisfied the Regulator will issue a completion certificate At this stage the ‘golden thread’ of prescribed documents must be handed over to the Accountable Person. The Client, Principal Designer and Principal Contractor will be required to sign a declaration that to the best of their knowledge, the building complies with the Building Regulations, and submit as-built drawings and information.
• There will be a requirement to report structural and fire safety issues which could cause significant risk to life to the Regulator.
• Each building must be registered with the Regulator and once registered, the Accountable Person must apply to the Regulator for a Building Assurance Certificate (this also applies to existing buildings). Obtaining the Building Assurance certificate will be a pre-condition to occupation.
• The Accountable Person must appoint a Building Safety Manager.

Higher-Risk Buildings in Occupation

• For existing buildings, the requirement for a Building Assurance Certificate will be phased in.
• Residents must be given certain information, and the Accountable Person must have a strategy in place for involving residents in building safety decisions.
• There will be obligations on residents too – to maintain their gas and electrical appliances and not to damage relevant safety items.

The New Homes Ombudsman Scheme

Developers will be required to join the scheme and comply with its code of practice or face sanctions.

Implied Terms

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.

Sanctions

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.

Summary

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.