Draft building safety bill: Government’s response the Hackitt Report

The BSB is intended to significantly overhaul the building safety system in light of Dame Judith Hackitt's Independent Review of Building Regulations and Fire Safety post-Grenfell.  It is also intended to reflect the outcomes of the "Building a Safer Future" consultation, begun in June 2019 and concluded in April 2020. The Government released a draft of the Building Safety Bill (BSB) in July 2020, in a move intended to encourage public and industry consultation and input before the bill is initially submitted to Parliament. The BSB is very detailed, and the Government's explanatory press release and a link to the draft bill can be viewed here. The outcome of pre-legislative scrutiny of the draft Bill by the Housing, Communities and Local Government Select Committee was published in November 2020, with the government response due in January 2021.  

The proposed changes are mostly intended to apply to tall residential buildings, i.e. those with a storey level 18m or over.  While the potential exists for this definition to be amended in future, this may be a sign that, even after consultation, the Government presently considers that it is buildings at that height or above which pose the real safety risks.  

The bill is an overarching framework, and provides that much of its detail will ultimately be set out in separate secondary regulation.  However, as a very broad summary, the key principles include:

• To impose a new and stricter regulatory regime for "higher-risk" residential buildings
• A "higher-risk" residential building presently proposed to be one where the top storey level is 18m or over, or the building contains more than 6 above-ground storeys.  However, it is also intended that, upon enactment, the Government will also be able quickly to respond to easily change this definition in future should it need to do so.  
• The focus is not only on fire safety, but on all matters that may impact upon "building's safety risk" in a higher-risk building, both during construction and in relation to occupied buildings;
• A new division will be created within Health & Safety Executive as the Building Safety Regulator. This regulator will have various powers, including increased enforcement and sanctions capability.
• Various other enhancements to regulation will also benefit all buildings.
• Changes are proposed to ensure increased competence of building control inspectors and architects.
• Changes are proposed in relation to the regulation of construction products.
• There will be greater scope for residents and new build owners' concerns to be heard.

Some additional comment on these issues is below.

Higher-risk buildings

This new regime for higher-risk buildings will comprise obligations both during the construction phase and in relation to completed buildings in occupation.

In relation to the design and construction of building works for higher-risk buildings, proposed changes include:

• The creation or expansion of various dutyholder roles, ensuring accountability and statutory responsibility across the design and construction (or refurbishment) of a higher risk building;
• The Building Control function is to be provided by the Building Safety Regulator itself (i.e. it will no longer be possible for the client or contractor to choose a local authority or approved inspection building control body for higher-risk building works);
• There will be various "gateways" during the planning, design and construction process at which regulatory requirements will be checked in detail, in order to ensure that "building safety risks" are considered at all times.  For example, at Gateway 2, construction work will be unable to begin until the Building Safety Regulator is fully satisfied that the design meets the functional requirements of the building regulations.
• A "golden thread" of building information is to be created, retained and updated throughout both this gateway process and the building's entire lifecycle

In relation to buildings in occupation, a new regime is proposed to ensure building safety is a clear focus for building owners/managers:

• Various obligations will be imposed upon the dutyholder in occupation (the "Accountable Person") to assess building safety risks with their buildings and to take reasonable steps to prevent them (including various mandatory steps such as preparing a new form of report (a "Safety Case Report") and appointing a specific "Building Safety Manager" who manages building safety risks day-to-day).
• All higher risk buildings in occupation (whether existing or new) will need to be registered and a Building Assurance Certificate obtained from the Building Safety Regulator (which will be issued if the regulator is satisfied that the Accountable Person is complying with the statutory obligations placed on them).  
• The Building Safety Manager will be required to engage and partner with residents to keep the building safe.

Enhancements that apply to all buildings

The creation of the Building Safety Regulator is said to have benefits in relation to all buildings, as it will also have oversight of building safety and performance more generally.  This body will undertake various functions relevant to all buildings in addition to "higher-risk" ones, including working with and supervising building control authorities, and establishing an industry-led committee to drive improvements and advise on competence etc.

Enforcement powers

The BSB also proposes increased or expanded enforcement powers including:

• The current short time limits under s35 and 36 Building Act 1984 for prosecution for non-compliance with building regulations will be extended to 10 years.
• The Building Safety Regulator will have powers to prosecute all offences in the BSB and the Building Act 1984, and to issue compliance and stop notices.

Improvements to regulation of building control function and architects

• A unified regulatory and professional structure for building control inspectors is proposed. Approved Inspectors will re-register as "building control approvers", and the new role of "registered building inspector" is to be created -- this will be an individual able to provide advice to local authorities or building control approvers (it is expected that current inspectors will transition to this role).
• The competence of architects will be improved by new or increased powers granted to the Architects' Registration Board to assess competence against set criteria and to require continuing professional development for architects.

Regulation of construction products

• Construction products marketed in the UK will now be subject to a new regulatory regime.  In particular, "safety critical products" will be identified and placed on a statutory list.

Protections for residents and leaseholders etc

• The BSB is to create a "New Homes" ombudsman scheme for purchasers of new builds, and also to make it easier for social housing residents to complain to the Housing Ombudsman.   Leaseholders/tenants will also be protected by way of changes to how building owners can levy and hold charges for works in relation to building safety.

Overall, as the BSB has been issued in draft to allow consultation, there is still likely to be a significant period of time before it passes through the various stages of the parliamentary process to become law.   However, it is a useful indication of the Government's present position and the likely changes to the regulatory landscape in future. The government is due to respond to the MCHLG Select Committee's pre-legislative scrutiny by 24 January 2021.