The Building Safety Bill is the government’s main response to the recommendations coming out of the Hackitt Report, following the 2017 Grenfell Tower fire. The Bill will overhaul regulations, changing the ways in which buildings should be designed, constructed, managed and maintained to ensure they are safe to use.
The Bill primarily addresses risk in high-rise residential buildings, but also captures issues surrounding high-rise hospitals and care homes, and will impact on all developments. This changing regime for high-rise buildings has a knock-on effect on all aspects of construction and focuses on two main streams:
- the design and construction phase
- the post-construction phase: management of the building throughout its lifecycle, to ensure it remains safe.
Changes in responsibility
Contrary to current legislation, which states that the building safety responsibility lies with whomever is carrying out the work – which could be anyone from the constructor to the building owner – the Bill focuses on defining responsibilities. The Bill more closely pivots around design, construction and management with regulation ensuring projects are safe at each stage before proceeding. The ‘dutyholder’ responsibility will be more clearly defined than in current legislation, but there is still much detail to await.
The Building Safety Bill outlines that the first step to addressing the ongoing safety of a building is to identify who the dutyholders are. The dutyholders are individuals that will be responsible for ensuring the safety of the building, putting a different responsibility on designers and developers, as well as the property management scheme. This will potentially cause a shift in job titles and responsibilities. There is a government factsheet about dutyholders available here.
The suggested changes are divided into an initial phase, setting out responsibilities, and a second phase, assigning a level of competence to people involved in carrying out these responsibilities. Designers, contractors and people managing the buildings will all be expected to have a set level of competence. In the Building Control sector, each practicing individual will be required to join a national register which will detail which types of buildings each individual is competent to work on. All other professionals involved will also have to demonstrate their competence.
While Approved Inspectors will continue to follow a competence regime, individuals will also have to be assessed in order to determine the level of responsibility they are able to carry. As all practicing individuals will have to be on the register and covered by the right level of competence, it is currently unclear whether those currently offering consultancy services to building control bodies will still be able to continue to do so in the same way, or whether everyone will have to be added to the individual companies’ books, bringing major change in terms of current practice.
Changes in regulatory bodies
From a building control perspective, the new regulator – the Health & Safety Executive – will take on responsibilities for building control for all high-rise buildings, deciding who they need to give them expertise. The fallback in the current Bill, as drafted, is the local authority but there is speculation that the HSE may also procure services from Approved Inspectors, given the needed level of expertise to fulfil high-rise projects. As such, the new Bill will change the person who is ‘issuing the certificates’ on each job, with this duty falling to the regulator.
There are ongoing discussions suggesting that when the regulator reviews building projects, a multidisciplinary team will be assigned to each project. This team will primarily consist of the fire service, building control and environmental health. Each of these bodies currently have their own legislation in terms of what powers they hold, but what remains unknown is the approach that will be taken in the event of an issue arising. Will one of these bodies be empowered to take the lead in terms of action, or will all three take independent legal action simultaneously?
Changes in insurance requirements
The government and the HSE have not yet advised if insurance requirements will be affected by the new legislation. The new term for qualified individuals will be ‘Registered Building Inspector,’ and there are suggestions that if an individual is working for an approved building inspector, they will be covered by the business’ insurance policies, eliminating the need to seek personal insurance. In an already difficult market, there is concern that insurance cover may be difficult to obtain for these new roles.
Changes in the approval processes
For commercial properties, there will be a requirement to get plans approved before starting work on site. This is the current arrangement in Scotland, but in England and Wales it has always been possible to start working on site once an application is submitted. The current legislation even allows for building on site to continue, even if the plan is rejected.
This requirement for approval prior to the start of work may change the process for all design and build companies, as much of the detailed design is often refined after building work begins.
While the change in process may delay building works in some areas, it could have a positive impact on many projects as it encourages the early engagement of building control inspectors by design and build companies. In the Hackitt Report, the government highlighted a ‘golden thread of information,’ identifying certain key points of a construction project that will require involvement from building control. Building control bodies will now be involved earlier, if possible, and key construction milestones cannot be progressed without the input of building control.
The devil is always in the detail
While the Act, once the Bill is passed, will provide the overall framework, regulations made under it will include significant detail of all new processes. These have yet to be published. This makes it difficult to understand the full impact the legislation will have on the construction sector. It is clear the HSE will be the regulator, but much supplementary information still needs to be fed to the HSE to detail the new processes.
The transition phase
The government is working to a target date of April 2023 for the Building Safety Bill to be in place. Many current projects are going to be faced with a currently undefined transition arrangement. There’s potential that before these projects begin, the regime is going to change and it is currently unclear how these ongoing projects will be transferred to the new regulator.
What is anticipated is that any issues will be monitored more closely, with a more effective enforcement regime and the HSE is expected to bring more cases through the courts.
Changes to the building control profession
The Building Safety Bill is one of the biggest changes since building regulations were introduced (in 1965) and it will have a major impact on the existing design, construction and management process. While contractors adjust to these new regulations, there is work being done to decide what will determine the different competency levels of inspectors. There is concern, particularly around building control, regarding current capacity and whether there are enough people in the industry to carry out work on new building projects. With a limited number of people joining the profession, there is a worry that the new registration and competency requirements could reduce the number of qualified individuals further.
Around 70% of high-rise buildings are currently dealt with by Approved Inspectors, with approximately 40% being NHBC, and 30% local authority. At the moment, the industry capacity is relatively evenly split between NHBC, local authority and Approved Inspectors. However, there is growing concern that if too many Approved Inspectors determine the new regulation measures to be too arduous, the capacity in the industry will be reduced. Local authorities have stated that they have the capacity to serve the industry but there is potential for regional variation.
Questions remain around competency, capacity and much more, in relation to the Building Safety Bill. Industry will follow with interest the Bill’s passage through the committee stages of the legislative process, as MPs scrutinise the detail and likely seek to make amendments. Full clarity may take a little longer.
About the author: Kevin Blunden is technical and compliance director at Harwood Building Control. He has been working with industry groups, the government and the Health & Safety Executive (HSE) to develop the new building safety regime. He is on the board of the Chartered Association of Building Engineers, chairman of Association of Corporate Approved Inspectors, member of the Building Control Alliance and a council member of the Construction Industry Council.