Article / 10 Mar 2021

The Building Safety Bill: what housebuilders need to know

Insight shared by:

Gateley Legal

The Building Safety Bill (BSB) and the Fire Safety Bill (FSB) are the direct result of recommendations made in the Grenfell enquiry and the Hackitt Review. This insight provides an overview of the BSB.

Sweeping changes are proposed by the BSB which will result in direct accountability and responsibility for the “lifecycle” of a building, including the design, construction and occupation of a building. At the same time, new enforcement and regulatory powers will be brought into effect which will create a much tougher regime in the event of a breach of the new rules. 

The Building Safety Bill (BSB) and the Fire Safety Bill (FSB) are not yet law, do I need to be concerned?

In a word – yes. You need to be preparing for both pieces of legislation now. The framework proposed by the BSB is going to require fundamental changes to how you design, construct and manage high rise buildings and the FSB significantly increases the responsibilities of the designated “Responsible Person” in multi-occupancy buildings. Whilst it is still in draft format, the fundamental building blocks of the legislation as set out in the BSB are unlikely to change. 

The Building Safety Bill: Key points to note

Higher Risk Buildings

  • The BSB will apply to “higher risk” buildings, which it is currently intended by Government should comprise all multi-occupancy residential buildings over 18 metres or 6 stories high in England. This includes student accommodation but does not currently include prisons, residential care homes or temporary accommodation such as hotels.
  • The BSB also introduces a stricter safety regime for all buildings.  

Building Safety Regulator 

  • A new Building Safety Regulator (the “BSR”) will be created, which will be the responsibility of the HSE with serious consequences for non-compliance. The BSR will oversee a new more stringent regime for higher risk buildings and drive improvements in building safety in all buildings. 
  • The BSR will have new responsibilities in relation to building control and Building Inspectors to ensure their competence with a view to creating a unified building control system. 

Full cost recovery approach 

  • The Building Safety Regulator function is going to be funded by a full cost recovery approach, enabling the Regulator to charge fees and recover charges from those it regulates for all its functions. 

Regulating the entire life of a higher risk building 

  • The BSB breaks the life of a building into three stages called “Gateways” with different duty holders and responsibilities at each Gateway. 
  • At each stage of the planning, design and construction process, information must be recorded and stored digitally, creating a “Golden Thread” of vital information about the building over its lifetime. 

Accountable Person

  • On occupation, each higher risk building will have an Accountable Person who will be the duty holder. They will have to produce and maintain a safety case report, which must be produced to the BSR. 
  • The Accountable Person will have to appoint a Building Safety Manager to oversee building safety on a day-to-day basis. 
  • Duty holders during the design and construction phase of the construction of higher risk buildings will be identified in the same way as duty holders under the CDM Regulations. The BSB will create powers to prescribe competency requirements for the role of Principal Designer, Principal Contractor and any other prescribed person. For higher risk buildings, the BSB provides powers to prescribe documents to be included in the Building Control Application, including a signed declaration from the client that they have assessed and are content with the competence of the Principal Designer and the Principal Contractor. 
  • The Accountable Person can be an individual, a partnership or corporate body, and can be a management company.  
  • The Accountable Person has to apply to register a higher risk building before it becomes occupied. The Building Safety Regulator will be responsible for keeping a register of higher risk buildings. 
  • The Accountable Person must maintain a Residents Engagement Strategy. This is likely to have to have to include how residents access safety information and how they make complaints.

The Three Gateways

Gateway 1

  • Gateway 1 is created at the planning stage. 
  • Information will need to be submitted to the Local Planning Authority demonstrating that the fire safety requirements which impact upon planning have been considered at an early stage and incorporated into the proposal. This will be known as “The Fire Statement”. 
  • The Building Safety Regulator will become a new statutory consultee. 

Gateway 2

  • This supplements the existing building control system. Gateway 2 provides a ‘hard stop’ where construction cannot begin until the BSR is satisfied in relation to the Building Regulations, safety and fire safety. 

Gateway 3

  • This is the current final certification/completion phase.
  • All prescribed documents must be handed over to the Accountable Person. 
  • Duty holders are required to submit prescribed documents to the BSR (maintaining the “The Golden Thread”.)

Mandatory occurrence reporting 

  • Duty holders throughout the lifecycle of the building will have an obligation to report structural and fire safety occurrences, which could cause significant risk to life safety, to the Building Safety Regulator. This begins with the construction phase and continues with the “Accountable Person” (See below).

New Homes Ombudsman

  • A New Homes Ombudsman will be created giving householders direct access to the Ombudsman process. It is intended to create a new Code of Practice in consultation with developers to govern sales, marketing, standards and quality, and complaints/enforcement of the Code. 

Construction Product Safety

  • New powers will be prescribed to govern the safety of all products used in construction and governing the competence of architects.

Enforcement 

  • Non-compliance with Building Regulations is currently dealt with by Sections 35 and 36 of the Building Act 1984. Currently, the time limit for enforcement action is one and two years, respectively. This will be extended to 10 years in the case of breaches of both Section 35 and 36. 
  • Power to prosecute individual directors/officers etc. where the offence is committed by a corporate entity with their consent/connivance/neglect.
  • New powers by the BSR to issue Compliance Notices (for remedial work by a certain date) and Stop Notices (to cease work until defects remedied). Non-compliance with Notices is a criminal offence carrying a maximum sentence of 2 years in prison. 
  • The BSR will have the power to replace the Accountable Person with a Special Measures Manager if there are serious failures which endanger life safety.
  • The BSR will hold building control bodies to account and will have the power to suspend or remove building inspectors from the register and prosecute them.

Do you need more information on how The Building Safety Bill will impact the building  industry?

The BSB is enormous in its scale and the impact upon the building industry and the safety management of higher risk buildings far reaching. Much of the detail is going to be the subject of secondary legislation, but everyone involved in the industry should be considering the changes they will need to make to meet the new requirements.

We have a dedicated team of specialists advising across the spectrum of issues presented by the BSB, and also advising developer and housebuilding clients in connection with the multi-faceted issues brought about by unsafe cladding. 

To discuss your requirements, please get in touch with our expert listed below.