Legal spotlight - September 2019

EARLIER THIS summer, the UK government published plans to overhaul the regulatory system for building safety in England. Going further than the recommendations in Dame Judith Hackitt's review on building safety published in the aftermath of the Grenfell tragedy, the new regime would apply to all multi-occupied residential buildings over 18 metres, or 6 storeys, in height (Hackitt had suggested new rules for buildings over 10 storeys), bringing it into line with the December 2018 ban on the use of combustible cladding on the external walls of new high-rise buildings. Additional buildings where multiple people sleep, such as prisons, hospitals, supported/sheltered housing, boarding schools and student accommodation may also be included in future.

Central to the new regime is the creation of a new building safety regulator to have overall responsibility for oversight of building safety and the wider building regulatory system, supervision of the new regulatory regime for buildings in scope (including mandatory occurrence reporting) and oversight of work to drive increased competence of professions and trades working on buildings, backed with significant powers to impose civil and criminal penalties. Tasked, in addition, to provide industry guidance as well as improvement advice, the government aims to harness the insight and experience gained by the new regulator to drive forward advances in building safety.

While the government's proposals currently advocate creating an entirely new body it leaves open establishing building safety as a new function of an existing regulator. One likely outcome is that the Health and Safety Executive could take on this new role in view of its already national role, the alignment of this new system with health and safety dutyholders under the 2015 Construction (Design and Management) Regulations, and HSE's experience with safety case regimes.

It is not clear how the new building safety regulator will interact with existing regulators, such as fire and rescue authorities, but stakeholders will be keen to avoid a situation where the new regulator simply adds another layer of complexity to an already complex system. The outcome of the Home Office's call for evidence on the interaction of the new regimes with fire safety legislation and housing standards will be key to resolving these issues.

As with the Construction (Design and Management) Regulations 2015, the proposals seek to place responsibility in the hands of those in control of the different phases of a building's life, creating, for example, five categories of 'duty holder' during the design and construction phase - client, principal designer and designer; and principal contractor and contractor - who will have new responsibilities for fire and structural safety of the building.

"Gateway" approval from the new regulator will also be required before building or significant refurbishment work can be carried out on buildings in scope, with the owners of existing buildings also required to seek pre-occupation approval from the new regulator on a phased basis. There will be new competence standards for all roles in the new regime and a requirement for duty holders to keep vital safety information about how the building was designed and built and is managed up to date as well.

Once the building is occupied, an 'accountable person' must be appointed to ensure the ongoing fire and structural safety of the building, and to proactively engage with residents. The accountable person, and building safety managers appointed by them, would have to be registered with the new regulator. Buildings within scope would have to be registered with the new regulator, and a safety case and building safety certificate provided. These must be reviewed every five years. Failure to comply with the conditions in the certificate would be a criminal offence.

The government's proposals signal a clear intention to drive compliance by holding those at fault to account. A detailed enforcement regime is proposed, which includes (where informal reinforcement of required standards fails):-

• Stop Notices (preventing construction work)

• Improvement notices (requiring remedial action to remedy breaches of building safety law)

• Prohibition notices (preventing access to all or parts of a building)

• Imposition of conditions, or revocation of the building safety certificate

• Civil sanctions

• Criminal prosecution, with penalties akin to health and safety law.

Specifically in relation to breaches of the Building Regulations, the government is proposing that the current two year time limit for bringing charges should be extended to either 6 years (to align with breach of contract claims) or 10 years (to align with collateral warranties). We also anticipate that the regulator will have powers to prosecute directors and senior managers alongside organisations for offences which have taken place with their consent, connivance, or which are attributable to their neglect. With increasingly hefty fines for regulatory breaches in other areas, and a growing prospect of an immediate custodial sentence for individual offenders, robust systems will be required to provide assurance to senior management of those companies responsible for designing, building, and managing buildings in scope that the organisation is complying with its duties.

The government is currently considering responses to its proposals and has indicated it will report further in the autumn. Organisations in key dutyholder roles can start to prepare now by:

• Engaging with professional and trade bodies on the development of competency frameworks;

• Reviewing contracts and procurement processes; 

• Implementing information gathering and management systems to capture the golden thread of information required for all buildings in scope; and

• Reviewing policies and procedures to ensure robust oversight of building safety at Board level.

Kevin Bridges is partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com