The Ministry of Housing, Communities and Local Government published the draft Building Safety Bill on 20th July 2020, their legislative response to Dame Judith Hackitt’s ‘Building a Safer Future: Independent Review of Building Regulations and Fire Safety: Final Report’ and the conclusion of Phase 1 of the Grenfell Tower Inquiry.
Scotland has separate legislation for both fire safety and building standards and any changes to these are awaited. This briefing is concerned specifically with the legislation and standards for England and Wales.
The Fire Safety Bill
The Fire Safety Bill amends the Regulatory Reform (Fire Safety) Order 2005 (”the FSO”), such that external walls, including anything attached to those walls – i.e. cladding - and flat entrance doors of multi-occupied residential buildings, of any height, fall within the scope of that Order.
The Draft Building Safety Bill
The primary purpose will be to establish a new Building Safety Regulator within the Health and Safety Executive to ensure that a variety of duty holders are held to account for health and safety failings within buildings and in particular “higher-risk buildings”.
Central to the regulator’s powers are: -
“exercising its building functions with a view to (a) securing the safety of people in or about buildings in relation to risks arising from buildings” and “(b) improve the standard of buildings”.
The regulator is given the duty to set up various committees with provisions made for reviewing the standard of buildings, facilitating improvements in the competence of the industry and building inspectors and the duty to establish a system for the giving of building safety information.
Building Safety Risk
The concept of a “building safety risk” is defined as: -
“a risk to the safety of persons in or about a building arising from the occurrence as regard the building of any of the following (a) fire (b) structural failure; (c) any other prescribed matter”.
Although no definition of a higher risk building is provided, it is assumed that high rise buildings will be included, but it remains to be seen what height of building will determine a building as higher-risk and what other types of buildings may be included.
Reform of the Building Control / Approved Inspector System
The Bill amends the Building Act 1984 and sets out provisions during the design and construction phase for higher risk buildings with aims to improve competence levels in the sector through the registration of building inspectors and building control approvers.
The Building Safety Regulator will be the Building Control authority for higher-risk buildings, removing higher-risk buildings from the scope of both local authorities building control departments and approved inspectors.
There are also provisions for the regulation of building control professionals and building control approvers (both local authority and approved inspectors) by the Building Safety Regulator and the creation of the offence of “acting outside the scope of [their] registration” which is punishable by a fine.
Provisions to establish a Code of Conduct for the profession and give the regulator powers to undertake professional misconduct investigations have also been made with powers to serve Improvement and Serious Contravention notices.
The Bill introduces criminal liability for directors, corresponding to section 37 of the Health and Safety at Work etc. Act 1974 (“the HSWA”).
The Bill defines and places duties on the “Accountable Person” who is the duty holder in occupation. The Accountable Person will be determined by reference to those who hold legal estate or those who hold a “relevant repairing obligation”. They may be an individual, partnership or corporate body and there may be more than one Accountable Person for a building.
Requirements imposed on the Accountable Person include registration of the building and an application for a building assurance certificate. Failure to do either will result in the commission of an offence.
It will be an offence for an “accountable person” contravene any relevant requirement where that failure places one or more people in or about the building at critical risk. The Accountable Person must take all reasonable precautions to avoid a “major incident” (one which involves “a significant” number of deaths) and to reduce the severity of such an incident.
The Accountable Person is also responsible for establishing and promoting a “resident’s engagement strategy” which will increase the power of residents’ voices.
Building Safety Manager
The Bill imposes duties on “Building Safety Managers” in relation to building safety risks in their buildings. It is worth noting that if a company is appointed as the Building Safety Manager, that company must appoint a nominated individual under Clause 70.
There are provisions for the assessment of “building safety risks” which must be “suitable and sufficient” and the preparation of a “safety case report” which will form the basis of the management by the Building Safety Manager.
Residents will have duties (where they are aged 16 or over) to maintain and repair any “relevant resident’s item” and take reasonable care to avoid damaging any “relevant safety item”. The Accountable Person has power to give residents notice of breach of their duties and there are provisions for an order to be made by the County Court where a resident contravenes a breach notice.
• Supplementary and Miscellaneous Measures
Supplementary and miscellaneous measures include a provision to require a new homes ombudsman scheme to be established and powers to make provisions about construction products. It allows disciplinary orders made against architects to be listed alongside an architect’s entry in the Register of Architects and it makes access for residents to the Housing Ombudsman easier.
The Bill will introduce new accountability, making it clear where the responsibility for managing safety risks lies throughout the design, construction, and occupation of buildings along with tougher sanctions for those that fail to meet their obligations.