Building safety reforms: lighter touch or sledgehammer?

FIRE Correspondent Tony Prosser reports on the progress of the Building Safety Bill and investigates the ramifications of simplifying the regulatory process

With the advent of the Independent Review into Building Regulations and Fire Safety, the publication of the Building Safety Bill in the Queen’s Speech could represent a reversal of the deregulation agenda that has been prevalent in successive governments over the last 40 years or so. Whether this means that there has been a sea change in government attitude towards legislation and “red tape” remains to be seen. But it may be the case that there is a wider recognition at national and industry levels that the regulation of building and fire in buildings has been neglected to the point that life safety has been compromised and now needs correcting.

While still awaiting a second reading in the House of Commons, details of the Bill as originally proposed in April 2020 in the report, A reformed building safety regulatory system: Government response to the ‘Building a Safer Future’ consultation, applicable to multi-occupancy residential buildings of six storeys of 18m or higher. Superficially at least, this could be a very positive move in terms of building fire safety and will build on the experience the Health and Safety Executive had in improving safety in the construction industry where deaths were slashed over a period of years.

Tweaking legislation and regulations through the Building Regulations and approved documents have improved standards over the years, but the radical overhaul proposed by Hackitt brings an integrated approach across the whole industry and its regulators to ensure safety of buildings, their occupants and visitors. As with any draft Bill there are issues which will need to be debated by parliament, further consulted upon and amended as necessary. There are, however, several concerns which may need to be addressed as there could potentially be unforeseen consequences further down the line.

Critical Failures

The fire at Grenfell Tower in June 2017 exposed several critical failures in the way that building safety has been managed in the past 30 years or so. While the Grenfell Tower Inquiry Phase 2 is on hold, which will ‘examine the circumstances and causes of the disaster, including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified in Phase 1’, the government has nonetheless pushed through the review, presumably in order to get changes to the system underway, given that the final reports will not be ready before 2023 at the earliest. The proposals form part of a package including the Fire Safety Bill, which had its second reading in April 2020 and funding of remediation works on buildings deemed to be at high risk due to unsafe cladding installation.

These proposals are essentially based upon the recommendations of the independent review (the ‘Hackitt report’) and form a number of threads which, if fully adopted, will produce the most radical changes to building safety and fire safety regulation in England since the introduction of national Building Regulations (England and Wales) in 1965. While these proposals naturally focus on high-rise multi-occupied residential buildings of over 18m in height or six storeys, it is intended that safety in other buildings will also be improved with time. As with all things, cost must be factored in and the proposals have been estimated to be in the order of £361 million once the benefits have been costed and considered.

“This could be a very positive move in terms of building fire safety and will build on the experience the Health and Safety Executive had in improving safety in the construction industry”

Building Safety Regulator

The introduction of a new body, the Building Safety Regulator (BSR), is probably the most eye catching and radical proposal, and one which drives and delivers on the rest of the package. It is intended that the BSR will implement the new ‘more stringent’ regulatory scheme, overseeing safety and performance of all buildings and promote competence and organisational capability of professionals, tradespeople and building control officers working on buildings.

The government followed the recommendation of Dame Judith Hackitt that the BSR be established within the organisation she once led, the Health and Safety Executive, as this would be the fastest route for implementation, using HSE’s expertise as a robust regulator and relying on expertise from existing regulators including building control staff and the FRS. Oversight is initially for buildings of 18m or more and BSR will continue to advise government about future developments (the scope can later be extended via the Building Safety Bill).

The BSR takes responsibility for ‘all major regulatory decisions made at key points during design, construction, occupation and refurbishment’, which does at the moment seem like a tall order for an organisation with, at least in the formative stages, few experienced staff with sufficient capacity to manage key decisions for all in-scope buildings projects across England during a housing boom (let us not forget the government’s aspiration to build at least 300,000 homes per year to meet demand: a demand that is likely to require substantial numbers of in-scope buildings).

One of the problems in recent years has been the lack of sufficient competent staff across the public sector due to cuts in government funding of local authorities and the FRS. “Hoovering up” existing staff from under resourced organisations is unlikely to redress deficiencies which led to some of the issues that emerged at Grenfell in the first place.

While the intention of providing a “clean break from the existing regime” is laudable, the logistical and organisational challenges implicit in any such change – structure, administration, governance, recruitment and training of staff, upskilling both industry and regulators – will seem to make the introduction of the Regulatory Reform (Fire Safety) Order (FSO) 2005 seem like a walk in the park by comparison.

“The proposed changes in how England manages its regulatory system for buildings are significant and potentially will have a huge impact on the way the system is carried out”

Regime Change

The phasing in of the BSR regime, to include only in-scope buildings at the moment, will reduce the “change burden”, but is likely to result in a two-tier approach whereby lower risk buildings will have different, possibly less stringent regulatory measures applied. Bearing in mind the criticism of overlapping systems of regulation applying to the housing sector previously, the perception of dual standards of regulation could turn out to be a minefield.

The selective application in the first instance could be seen analogous to the introduction of the Fire Precautions Act in 1971 where all premises (except for single household dwellings and places of religious worship) would come within the scope of the Act. Due to the costs of implementation in all buildings, the FPA was in effect neutered with other legislation, which relied to a great extent on self-regulation and was eventually replaced by the FSO, itself now questioned about its effectiveness.

In time the BSR will have regulatory responsibility for advising government of changes to Building Regulations and approved documents, overseeing the work of building control officers and approved inspectors (and applying sanctions where failure occurs) and advising on current and future risks. This oversight role will replace the Building Regulations Advisory Committee (BRAC) and presumably do a better job, having recruited specialists ‘with a wide range of knowledge, skills and experience from across the built environment’, than the current crop of specialists drawn from industry. The BSR will also oversee the assurance of the ‘the competence of people across all disciplines working on buildings’.

This raises a number of questions including how extensive will the BSR administration ‘tail’ need to be to effectively control the wide range of responsibilities and functions intended in its remit or will the outcome once again be a ‘light touch’ approach with a mismatch between ministerial words and actual deeds?

Accountability of those responsible for a building from design to occupation is being clarified. The unfolding mess regarding who was legally responsible for key decisions made leading up to the fire at Grenfell Tower has shown how muddled thinking by clients, designers, architects, product manufacturers, specifiers, installers and manufacturers has led to only one party – the local authority building department – admitting to errors on their part (but not entirely of their own making).

Duty Holders and Gateways

It is entirely possible that in ten years’ time, when the appeals processes are exhausted, no-one is ultimately allocated blame for the fire, rather, repeating the outcome of the Summerland fire inquiry in 1973. From now on, things will be different: the duty holder during the design, construction and refurbishment phases will be allocated ‘clear duties’, demonstrate compliance with the more stringent regulatory regime and will at various times be:

• the Client: any person or organisation for whom a construction project is carried out as part of their business.
• the Principal Designer: appointed by the Client under Construction (Design and Management) Regulations 2015 to plan, manage, monitor and coordinate the pre-construction phase, when most design work is carried out.
• the Principal Contractor: appointed by the Client under Construction (Design and Management) Regulations 2015 to plan, manage, monitor and co-ordinate the construction phase.
• Designer(s): who undertakes a trade, business or other activity in connection with which they prepare or modify a design or instruct any person under their control to prepare or modify a design.
• Contractor(s): who manages or controls construction work (eg building, altering, maintaining or demolishing a building or structure). Anyone who manages this work or directly employs or engages construction workers is a contractor.

These duty holders will be responsible for meeting requirements required for two of the three ‘gateway’ sign-off points. The gateways are points where sign-off is required before allowing the building to move to the next stage of building.

‘Gateway one’ ends with the granting of planning permission following consideration of FRS access and water supplies. It is expected that a ‘fire statement’ , supported by National Guidance (produced by the BSR in consultation with NFCC, Joint Regulators Group etc) will be provided by the developer as part of the application.

‘Gateway two’ – the pre-construction check point – is where the BSR (taking on the role of the Building Control Body) brings together teams with regulatory functions to assess the plans, fire and emergency file and other documents. This gateway provides a ‘hard stop’ to progress (except where it does not, as in complex buildings where it can be hard stopped in stages).

‘Gateway three’ is the final sign off stage where the client is required to submit to the Building Safety Regulator information on the final, as-built building. Similar in intent to Regulation 38 under the Building Regulations, will include:

• Updated as-built plans indicating any agreed variations since Gateway two;
• A complete construction control plan;
• An updated fire and emergency file; and
• A complete key dataset.

Hopefully, the new regime will be enforced more robustly than is the case with the existing Regulation 38 requirements were.

The three Gateway points will apply to all multi-occupied residential buildings of 18 metres or more in height, or more than six storeys (whichever is reached first) to ensure a consistent approach and ‘mitigate gaming’ of the system.

Once the building is occupied an ‘accountable person’ (a legally responsible entity which may be a company or a person) is responsible for meeting the conditions of the Building Registration Certificate. They may appoint a competent building safety manager (again a person or legal entity), approved via a BSR approved system, to manage safety in a building and using a safety case approach based upon the established risk assessment principles and includes a requirement to report occurrences of building safety or fire safety failures.

As a result of the lack of notice being given to fire safety concerns raised by Grenfell Tower residents by the tenant management organisation, the BSB proposes that the Building Safety Manager will be required to produce a Resident Engagement Strategy which ensures that safety information is distributed to tenants, a residents’ complaints procedure is implemented, engagement forums and that diversity of needs is taken into account.

Other aspects of the Bill include the establishment of a new National Construction Products regulatory role (another role for the BSR if they have the capacity?), which is responsible for market surveillance and oversight of local enforcement action, maintaining a national complaints system and supporting local Trading Standards; enforcement action with manufacturers on national or significant issues; and providing advice and support to the industry and technical advice to the government.

The regulatory process for building regulations at present. Will future process charts be any less complicated?

Source: Independent Review of Building Regulations and Fire Safety (2018)

Compliance and Deterrence

One of the key findings of the Grenfell Tower Inquiry is the systemic ignorance of matters that should be vital to the performance of individuals in the professional roles associated with the design and construction of the refurbishment of the tower. The outcome can be related to the lack of professional competence across a range of activities. The BSB seeks to produce a more consistent approach to assessing and assuring competence across all disciplines in industry and building control.

Using industry-led committees, the BSR will lead the industry and building control to develop systems and processes to ensure professional competence. In addition, the government will be working with the Architects Registration Board to assess how architects maintain and enhance their competence throughout their career, although it is difficult to understand why the BSR cannot carry out this assessment and gain an oversight of the industry competence including the architectural aspects of the construction industry.

The whole proposal for change is underpinned by a culture of compliance and deterrence. A comprehensive enforcement and sanctions protocol will be developed and the ‘carrot’ (or incentivising the right behaviour) is the threat of sanctions if rules are transgressed.

The proposed changes in how England manages its regulatory system for buildings are significant and potentially will have a huge impact on the way the system is carried out. A question remains as to how necessary such a seismic “reset” is, particularly during a financial crisis that is “unprecedented” in the literal sense of the word? Assessed costs of such changes in legislation in the past have usually been woefully underestimated and have included the introduction of the FSO and a host of other government initiatives which have failed (anyone remember regional controls for example?).

One of the drivers for change was to simplify the regulatory process (see diagram on pg 49 of the processes involved as identified in the independent review), but how would a similar process chart for the new system look? I suspect it may not be that much less complicated and the introduction of the BSR adds another layer which could increase complexity, add delays to processes and, unless adequately resourced, seems doomed to be criticised for not delivering on what seems to be a utopian agenda.

Like most projects (and this is a project, despite being eventually enshrined in legislation), unforeseen consequences may be lurking between the passing of the Act and implementation: unknown unknowns hiding within the details and events, like the Covid-19 pandemic, which could put many initiatives onto the back burner for years. Even with the best of intentions, as of May 31, 2020 (according to MHCLG), there are still 300 high-rise residential and publicly owned buildings with ACM cladding systems unlikely to meet Building Regulations yet to be remediated, some three years after the Grenfell Tower fire. And despite it all, if government were able to draft legislation and technical guidance in a comprehensible manner in the first place, we may not have wrapped a building in a combustible sheath and many of the proposed changes would not have been required.