Article / 16 Sep 2020

An overview of the draft Building Safety Bill

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Gateley Legal

In July 2020 the Government published the draft Building Safety Bill with the lofty aim of comprehensively transforming building safety standards in the wake of the Grenfell tragedy to “Put in place new and enhanced regulatory regimes for building safety and construction products, and ensure residents have a stronger voice in the system.”

The Building Safety Regulator

The Government has confirmed that the Health and Safety Executive will establish a new Building Safety Regulator, something which was first suggested by Dame Judith Hackett (ex-HSE Chief Executive) in her post-Grenfell report. 

The HSE describes this new Regulator’s responsibility as overseeing:

“the safe design, construction and occupation of high-risk buildings so that residents are safe and feel safe. It will be independent and give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.”

The new Regulator’s role will include:

  • implementing a new, more stringent regulatory regime for high-risk residential buildings;
  • promoting competence among industry professionals and regulators to raise standards in design, construction and the management of buildings; and
  • overseeing performance systems of all buildings, so that one regulator can provide guidance on building performance as well as building safety, ensuring that factors like countering climate change are factored into regulatory decisions.

The new Regulator will have powers to take enforcement action and impose sanctions on parties who do not fulfil their regulatory obligations. See the HSE web page.

Other new committees/ bodies to support the Regulator’s work

  • Building Regulations Advisory Committee – providing evidence-based guidance on new issues that emerge in the built environment sector;
  • A new committee for industry competence – to overcome the fragmented and inconsistent competence of workers and managers that currently exists in the building safety sector;
  • A new residents panel – to provide a voice to residents which will be consulted on developments from the new Building Safety Regulator; and
  • New Homes Ombudsman – to provide redress to consumers whose complaints will be considered on a case-by-case basis:
    • The New Homes Ombudsman is expected to be granted enforcement powers to provide homeowners with an added layer of protection against developers;
    • A code of practice is anticipated to be published to balance the concerns of homeowners and developers; and
    • All developers of new homes will be required to engage in the scheme. 

Sanctions under the Building Safety Bill

The time limit for bringing a prosecution for breach of the Building Regulations will increase from 2 years to 10 years.

The new Building Safety Regulator will have a suite of enforcement powers including:

  • stop notices for live construction projects which are in breach.
  • compliance notices to compel accountable persons to fix issues by a set date.
  • ban or remove building control bodies from the inspector's register.
  • prosecution for corporate entities for breach as well as directors/officers personally if the breach was through their “consent or connivance”.

Key Changes introduced by the Building Safety Bill

The Building Safety Bill introduces several layers of accountability and protection to residents in high-rise buildings, but possibly the most far-reaching of all are the following:

  1. Dutyholders

    A new system will give each party in the construction process responsibility for managing the risk associated with their element of the project. This process will be coordinated by gateways in the building cycle with the underlying idea being that the new Regulator will be able to stop the cycle at relevant points to review and approve building safety standards. The building cycle will be connected by a ‘golden thread of information’ in which all of the original design and construction details will be available digitally. 

  2. Accountable Person    

    When a building is occupied, the duty holder will become the accountable person whose duties will include:

    - ensuring the safety of the people living in the building;
    - registering the building with the Building Safety Regulator;
    - securing a building safety assurance certificate before it is occupied; and
    - appointing a building safety manager
     
  3. Building Safety Managers

    These building safety managers will be appointed for every highrise building in the country primarily they will act to support the accountable person in their functions. Creating this new post to stand alongside the accountable person to ensure building safety compliance is expected to prove very useful for stakeholders in providing them with another channel of communication for fire safety concerns. 

    The new Building Safety Regulator will be able to veto the appointment of a building safety manager if it is not comfortable with their competence, and failure to perform the role properly can carry a financial penalty and even imprisonment. 

    Impact on leaseholders

    A new “building safety charge” will be introduced which will be separate from the service charge. Remedial works on buildings concerning building safety requirements will only be able to be funded using this new charge. The charge will cover some of the new measures brought in under the Building Safety Bill, such as paying for the required building safety manager and the day-to-day management of the building.

    Leaseholders will be able to refuse to contribute to the charge where it is deemed “unreasonable” or if the building owner has not provided a clear breakdown of costs. 

    Impact on developers

    The Building Safety Bill represents a radical change to the UK building industry regulatory landscape. It raises standards and introduces much greater accountability and responsibility for fire and structural safety issues.

    Whilst the majority of measures are likely to be welcomed by developers who have been let down by poor D&B or cladding and fire-stopping contractors, the new duties imposed by the Bill are likely to come at a significant cost.

    It will be vital for developers, RSLs and managing agents alike to look at the new regime and ensure there are plans to incorporate it into projects right from the planning stage and to ensure that teams (from commercial costing through to site teams and customer service) are trained and aware of their obligations.

    The sanctions for getting it wrong are significant both in terms of cost and reputation. 

More information

If you are the subject of any civil or criminal investigation arising from cladding or fire safety matters, our specialist Regulatory and Construction teams at Gateley will be able to assist you and provide comprehensive legal advice, contact our experts listed below for more information.

Also see our previous insight which explores the Fire Safety Bill for further guidance.