On 20 July 2020, the Government published a draft Building Safety Bill (“the draft Bill”) as part of its commitment to overhaul fire safety regulation in the wake of the Grenfell Tower fire in June 2017, which claimed 72 lives. The draft Bill is the latest in a series of actions the Government has taken to improve fire safety in high-rise residential buildings, including the introduction of the Fire Safety Bill earlier this year.
The draft Bill also brings forward the recommendations of Dame Judith Hackitt in her ‘Review of Building Regulations and Fire Safety’, which set out over 50 recommendations as to how to deliver a more robust regulatory system, and puts into action the Government’s response to the ‘Building a Safer Future’ consultation, published in April 2020.
The publication of the draft Bill overhauls the existing fire safety system by imposing new duties designed to increase accountability, transparency and oversight of fire safety throughout the life of a building, with stronger sanctions for breaches of those duties. Key changes include the prioritisation of residents’ safety through the entire life cycle of a building, the creation of an Accountable Person who will be responsible for keeping residents safe in high-rise buildings, the introduction of a ‘golden thread’ of safety information about a building, and the establishment of a new Building Safety Regulator to ensure compliance with these new responsibilities.
Scope of the draft Bill
Although elements of the draft Bill will apply to all buildings, many of the changes are focussed on higher-risk buildings. The definition of a ‘higher-risk building’ will be subject to further legislation, but the current proposal is that the initial definition will cover all multi-occupied residential buildings with a height of 18 metres or more, or more than six storeys (whichever is reached first). This definition will likely be subject to further review and change once the new regime is in force.
The draft Bill mainly applies to England, but some of the changes will also apply to Wales, Scotland, and Northern Ireland.
The life cycle of a building
When buildings are designed, constructed or refurbished, the persons or entities involved in the commissioning, design, construction or refurbishment (including those appointed under the CDM Regulations 2015) will have formal responsibilities for compliance with building regulations. Many aspects of these responsibilities will be taken further by secondary legislation.
Responsibility and duties for high-rise buildings
The draft Bill creates the role of the Accountable Person for a higher-risk building. The Accountable Person will be the dutyholder in occupation of the higher-risk building with control of the common parts or who has relevant repairing obligations in relation to the common parts, such as the owner or leaseholder of the whole building, or the management company. There may be more than one Accountable Person for a building. The Accountable Person’s duties will include:
- An ongoing duty to assess the building safety risks and to take all reasonable steps to manage those risks to prevent a major incident occurring or to reduce the severity of the incident. These steps must be taken promptly. This will need to be demonstrated through a Safety Case Report, which must be kept up-to-date and will be submitted to the Building Safety Regulator (newly established under the draft Bill, see below for more detail on this);
- Registering the building (in the case of un-occupied buildings, before occupation) and applying for a Building Assurance Certificate, and displaying the certificate in a prominent position within the building. This also applies to existing buildings;
- Appointing a Building Safety Manager, who must have the organisational capability and relevant skills, knowledge, experience and behaviours for the role; and
- Various obligations that help to promote a strong partnership between residents and the Building Safety Manager, including engagement and participation (including establishing and promoting a resident’s engagement strategy), complaints handing, and information provision.
If the Accountable Person fails to comply with their duties, they will be committing an offence.
The Building Safety Manager’s role will be to support the Accountable Person in the day-to-day management of fire and structural safety in the building, and they too have specific responsibilities.
The draft Bill also contains legal responsibilities for residents, including to keep in repair and proper working order any relevant resident’s items and to comply with requests made by the Accountable Person in connection with their duty to assess safety risks and take steps to prevent serious harm.
The ‘golden thread’
The draft Bill includes provisions to help create a ‘golden thread’ of information. This will allow the right people to have the right information at the right time to ensure buildings are safe and building safety risks are managed throughout a building’s lifecycle. Information must be collected during the design and construction process and, once construction is complete, the information must be handed over to the Accountable Person. This information must be stored digitally and be kept up-to-date. The details as to what information must be kept will be made available in secondary legislation.
The Building Safety Regulator, its duties, enforcement, and offences
The draft Bill establishes the role of the Building Safety Regulator (“the Building Regulator”), which is currently being established as part of the Health and Safety Executive. The Building Regulator will have three main functions:
- Implementing and enforcing the new regulatory regime for higher-risk buildings, including responsibility for all regulatory decisions under the new regime during the design, construction, occupation and refurbishment of higher-risk buildings;
- Overseeing the safety and performance of all buildings, including overseeing the performance of other building control bodies and advising on existing and emerging building standards; and
- Assisting and encouraging competence among the built environment industry and registered building inspectors.
The Building Regulator will ensure compliance with the measures outlined in the draft Bill through a combination of toughened existing powers and new powers, such as:
- The extension of time limits for prosecution to ten years for certain notices issued under the Building Act 1984 in relation to non-compliance with building regulations.
- Powers to prosecute all offences in the draft Bill and the Building Act 1984, including the prosecution of directors, managers, etc. of companies that have committed an offence with the consent or connivance of those persons.
- Powers to issue compliance and stop notices. Failure to comply will be a criminal offence, with a maximum penalty of two years imprisonment and an unlimited fine.
- Powers to appoint a Special Measures Manager to replace the Accountable Person or Building Safety Manager where there are serious failures.
The draft Bill also contains other provisions relating to:
- implying building safety terms into long leases of dwellings in higher-risk buildings, including in relation to building safety charges;
- construction products;
- registration and regulation of architects; and
- a new homes ombudsman scheme with powers to adjudicate housing complaints.
Consultation and status of the Bill
The draft Bill has been published to enable consultation and scrutiny before the it is introduced to Parliament. It will be examined by a Parliamentary committee and the Government also intends to work with stakeholders on areas that need refinement or further consultation before it is finalised.
Coinciding with the publication of the draft Bill, a consultation on fire safety was also launched. The Government is seeking views on:
- strengthening the Regulatory Reform (Fire Safety) Order 2005;
- implementing the Grenfell Tower Inquiry Phase 1 Report recommendations that require a change in the law to place new requirements on building owners or managers of multi-occupied residential buildings; and
- strengthening the regulatory framework for how building control bodies consult with Fire and Rescue Authorities and the handover of fire safety information.
The consultation closes on 12 October 2020.
The authors wish to acknowledge the assistance of Isabel Stones (Trainee, CMS Sheffield) and Oliver Bristow (Trainee, CMS Sheffield) in preparing this article.