Building Safety Legislation

In response to the findings of the Hackitt Review into building safety following the Grenfell fire tragedy, the Government is to introduce major reforms of building safety legislation.

To implement the Hackitt Review recommendations quickly, initial reforms have taken the form of updated Government guidance. This is due to be followed by legislation enshrining the reform of building safety into law.

In addition, various professional bodies such as the Royal Institution of Chartered Surveyors (RICS) have added their own guidance to address some of the practical implications of the proposed changes.

The process of reform has begun to gather pace, with the Fire Safety Bill receiving Royal Assent at the end of April 2021.

The Health and Safety Executive (HSE) have also responded, recently announcing the appointment of a new Chief Inspector of Buildings to establish the new Building Safety Regulator (BSR). The BSR will fulfil a crucial role set out in the upcoming Building Safety legislation, which is currently in draft.

With the publication of various pieces of guidance, together with new and emerging legislation it can be difficult for freeholders and Building Managers to discern what their obligations are and what they will be in the future.

This article is intended to provide a summary of the main guidance and legislation, together with a likely timescale of when additional obligations will apply.

MHCLG Consolidated Advice Note - January 2020

Advice for Building Owners of Multi-storey, Multi-occupied Residential Buildings

This publication consolidates and supersedes 22 previous Advice notes issued by the Independent Expert Advisory Panel advising the Government following the Grenfell Tower fire.

Key points :

Building owners are responsible for the safety of their buildings. They may currently be the ‘Responsible Person’ under the <a href="https://www.legislation.gov.uk/uksi/2005/1541/contents/made" target="_blank" rel="noreferrer noopener">Regulatory Reform (Fire Safety) Order 2005</a>.

In future there will be a new category of duty holders with responsibility to review the safety of their existing buildings and remediate where necessary.

The need to assess and manage the risk of external fire spread applies to buildings of any height.

The Advice note strongly advises building owners to consider the risks of any external wall system and fire doors in their fire risk assessments, irrespective of the height of the building, ahead of the planned Fire Safety Bill.

Vulnerability of occupants is a significant factor in assessing this risk and, in some instances, may be more significant than building height.

RICS Guidance Note - Updated March 2021

Valuation of Properties in Multistorey, Multioccupancy Residential Buildings with Cladding

This Guidance Note is for the purposes of valuation only.

A valuer will need to carefully consider whether the presence of cladding or balconies on a multi-storey, multi-occupancy residential building is an obvious potential hazard that may materially affect the value of the property and its saleability.

If required by a valuer or lender, specialist input from a competent expert on cladding can be sought through the completion of an EWS1 form, developed by the RICS in conjunction with the UK Government and lenders.

It is important to note what the EWS1 form does not do. An EWS1 form is not a fire safety certificate. It is only for the use of a valuer and lender in determining if remediation costs affect value.

The RICS Guidance note states that an EWS1 form should only be required on buildings of four storeys or fewer where there are aluminium composite material (ACM), metal composite material (MCM) or high pressure laminate (HPL) panels on the building.

It should only be required for buildings of five or six storeys where there is a significant amount of cladding on the building (one quarter of an elevation) or where there are ACM, MCM or HPL panels.

For buildings over six storeys, an EWS1 form should be required where there is cladding or balconies which stack vertically with combustible material present.

The RICS Guidance and the EWS process does not replace or reduce the obligation of the building owner to assess and manage the risk of external fire spread in buildings of any height as set out in the January 2020 MHCLG Consolidated Advice Note.

Fire Safety Bill

Received Royal Assent 29 April 2021

The Fire Safety Bill was introduced to amend the Regulatory Reform (Fire Safety) Order 2005 and is the first of the reforms to building safety legislation.

It aims to make it clearer where responsibility for fire safety lies in buildings containing more than one home. This Bill is part of a series of changes to fire safety and building safety the Government is taking following the Grenfell Tower fire in 2017, with further primary and secondary legislation to follow.

Current Fire Safety Legislation

The Regulatory Reform (Fire Safety) Order 2005 (Order) brought together different pieces of fire legislation. It applies to all non-domestic premises, including communal areas of residential buildings with multiple homes.

The Order designates those in control of premises as the responsible person for fire safety and they have a duty to undertake assessments and manage risks. The Order is enforced by Fire and Rescue Authorities.

What does the Fire Safety Bill do?

The new fire safety legislation makes clear that for any building containing two or more sets of domestic premises the Order applies to the building’s structure and external walls and any common parts, including the front doors of residential areas.

It also confirms that references to external walls in the Order include 'doors or windows in those walls' and 'anything attached to the exterior of those walls (including balconies).'

These amendments to the Order aim to increase enforcement action in these areas, particularly where remediation of ACM cladding is not taking place.

Building Safety Bill

Draft Legislation July 2020

The objective of the draft Building Safety Bill is to learn the lessons from the tragedy of the Grenfell Tower fire. The new legislation is intended to remedy the systemic issues identified by the Hackitt review by strengthening the whole regulatory system for building safety.

The draft Bill seeks to make it clear where the responsibility for managing safety risks lies throughout the design, construction and occupation of buildings 'in scope' and provides tougher sanctions for those who fail to meet their obligations.

Key provisions of the Bill are as follows :

Building Safety Regulator

One of the central recommendations is the establishment of a new, national Building Safety Regulator, that will be responsible for :

implementing a more stringent regulatory regime for buildings in scope

overseeing the safety and performance of all buildings

promoting the competence and organisational capability of professionals, tradespeople and building control professionals working on all buildings.

The Health & Safety Executive (HSE) announced the appointment of Peter Baker as the Chief Inspector of Buildings to lead the new Building Safety Regulator (BSR) in February 2021.

Stringent Regime for Higher Risk Buildings

Higher-risk residential buildings will be subject to a more stringent regulatory regime during construction and occupation, coupled with enhancements that apply to all buildings.

Initially the proposed definition of 'higher-risk building' will be all multi-occupied residential buildings of 18 metres or more in height, or more than six storeys. This will include student accommodation but not, for example, residential care homes, prisons, or temporary accommodation such as hotels.

The Bill allows for this definition to be broadened by the Secretary of State in the future. The more stringent regime includes the provision for :

Dutyholders

A new dutyholder regime, introducing accountability and statutory responsibility, will mirror those appointments required under the Construction (Design and Management) Regulations 2015 (CDM 2015) such as Client, Principal Designer and Principal Contractor.

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 across the design, construction and occupation of buildings on an ongoing basis, dutyholders will need to engage with the requirements and the safety and performance outcomes they are trying to secure so that compliance with building regulations is never again viewed as a 'tick-box exercise'.

The Pre-legislative Report by the HCLG Committee highlighted that additional competencies, particularly in respect of the principal designer, will be required, noting that the Bill needs 'to go beyond' CDM as a different set of skills is required.

Gateways

A new Gateway regime (with stop/go decision points) will ensure that building safety risks are considered at each stage of a building's planning, design and construction.

Gateway One

To be fulfilled by those applying for planning permission, before the dutyholders are in place. A 'Fire Statement' demonstrating that fire safety requirements which impact on planning have been considered and incorporated into the proposals will need to be submitted.

Gateway Two

Construction work cannot begin until the Building Safety Regulator is satisfied that the dutyholder's design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations.

Gateway Three

Once building work has finished and before occupation the building control body assesses whether the work has been carried out in accordance with the building regulations.

At this point key information related to fire and structural safety submitted during the three Gateways will form part of the ‘golden thread’ of digital data, which will be kept up to date and made accessible to relevant people throughout the lifecycle of the building.

The Client, Principal Designer and Principal Contractor will also be required to produce and co-sign a final declaration confirming that to the best of their knowledge the building complies with building regulations.

The Building Safety Regulator will decide whether to accept the declaration and associated information. If the BSR is satisfied he will issue a Building Registration Certificate allowing the building to be legally occupied.

Accountable Person and Building Assurance Certificate

The Accountable Person is the dutyholder during occupation.

The dutyholder will be responsible for registering the building and applying for a Building Assurance Certificate. This will usually be the freeholder of the property, but where the interest of the building has been granted to lessees, and they retain an obligation to repair and maintain a common part, the definition will also include them as Accountable Persons. This will include individuals, investment companies, local authorities and housing associations.

Building Safety Manager

The Accountable Person must appoint a Building Safety Manager (BSM), to provide support in managing day to day fire and structural safety risks in the building.

This is an entirely new profession, and it is envisaged that building safety managers will be highly trained and competent people.

Responsibilities include managing the building in accordance with the Safety Case Report, ensuring that the requirements of the Building Assurance Certificate are complied with and co-operating with other occupiers or owners of the building to secure an integrated approach to managing building safety risks.

Residents

The Accountable Person will have to produce and keep up to date a Residents' Engagement Strategy helping to promote a strong partnership between residents and the BSM.

This will cover engagement and participation, complaints handling, information provision and the role of the residents in helping to keep the building safe.

Residents will have clear legal responsibilities to keep in repair and proper working order any relevant items, take reasonable steps to avoid damaging any relevant safety item and comply with requests made by the Accountable Person.

New Building Safety Charge

The Bill proposes that new terms will be implied into long leases (over 21 years) of dwellings in higher-risk buildings so that building safety measures, the associated costs and the related charges that may be passed on to leaseholders will be separate from the service charge provisions in each lease.

Under the new statutory implied terms, the landlord makes a commitment to the leaseholder to carry out the necessary measures, to apply for any financial support available, and to observe the statutory requirements in relation to raising charges.

The leaseholder makes a commitment to the landlord to pay a fair share of 'reasonable charges' and co-operate with the building safety regime.

The Pre-legislative Report harshly criticised the measure to permit landlords to charge leaseholders for the cost of remediating historical safety defects for which they were not responsible as 'unacceptable and an abdication of responsibility on the part of the Government'.

The recommendation is that 'The Government must recommit to the principle that leaseholders should not pay anything towards the cost of remediating historical building safety defects and to provide leaseholders with the peace of mind they deserve, amend the Bill to explicitly exclude historical costs from the building safety charge'.

The financing of remediation works therefore currently remains unresolved, despite the allocation of £1.6 billion in the building safety fund.

Enforcement and sanctions

Existing Powers

The Bill extends the time limits, set out under the Building Act 1984, for prosecution for non-compliance with building regulations from two years to ten years and from one year to ten years in relation to the correction of non-compliant work.

New powers

The Building Safety Regulator will have powers to prosecute all offences in the Bill and the Building Act 1984. Where an offence is committed by a corporate body with the consent or connivance of a director or manager, or is attributable to their neglect, that person will be liable to prosecution as well as the corporate body.

The BSR will be able to issue compliance notices (for rectifying non-compliant issues) and stop notices (halting work until serous non-compliance is addressed) and failure to comply with such notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine.

The BSR will also hold to account building control bodies where they haven't registered or are performing below the set standard and will be able to suspend or remove inspectors from the register and to prosecute where necessary.

Summary

The Consolidated Advice Note published in January 2020 urged developers and the construction industry to start implementing new practices as soon as possible without waiting for the legislation to catch up.

With the obligations introduced by the Consolidated Advice note already in place, and further measures coming into effect now that the Fire Safety Bill has received Royal Assent, the reforms to building safety legislation are gaining pace.

The draft Building Safety Bill is on course to be formally laid before Parliament in early 2021. It is anticipated that the new regulatory regime, overseen by the Building Safety Regulator, will be introduced in 2023, but as yet there is no firm timetable.

The new Building Safety Bill, once passed into law, will introduce onerous duties on individuals and organisations responsible for building safety. The Pre-legislative Report produced by the Housing, Communities & Local Government Select Committee recommends that the Government publish a timetable for commencement, so it is clear when the industry has to demonstrate compliance.

How we can help

At Anstey Horne we are one of very few Chartered Surveying Practices undertaking inspections of properties under the RICS EWS1 process. Since the EWS1 process was introduced in January 2020 we have inspected and reported on several hundred buildings containing thousands of individual apartments.

Our Building Consultancy team are also qualified CDM Principal Designers under the CDM Regulations 2015, with membership of the Association of Project Safety. We provide Construction Supervisor services as the ‘custodian for quality’ under construction contracts ensuring that works are completed in accordance with the quality standards defined in the Works information.

Anstey Horne's Building Consultancy team have a unique skillset that allows us to deliver the enhanced CDM role for construction work that falls within the scope of the proposed Building Safety Bill. We are also able to perform the entirely new role of Building Safety Manager.

Whilst the Bill is not expected to be in force until 2023, developments currently in planning will be in ‘scope’ of the new regime when construction begins in a few years’ time.