Building Safety Bill
The Building Safety Bill received its Third Reading on 19th January 2022. Introduced in response to the Grenfell Tower tragedy and Dame Judith Hackitt’s report on Building Regulations and Fire Safety, it is the most fundamental reform of regulation across the construction and residential property sectors in living memory. At third reading a significant number of amendments were tabled for further consideration.
The Bill creates a Building Safety Regulator, responsible for the regulation of ALL buildings, with new statutory roles for designer and contractors on all projects.
The Bill also creates an entirely new and more rigorous regime for prescribed classes of buildings, with new planning and building control gateways, building safety managers, safety cases and a statutory golden thread of information, all linked to a formal certification of the building for fitness to occupy.
The Bill will strengthen the whole building control system, with the new Regulator taking responsibility for professional standards and registration for all building control officers.
At Third Reading the government introduced proposals for a Building Works Agency to oversee the remediation of cladding.
CIBSE is totally committed to work with our members, firms that employ them, government, including the new Building Safety Regulator, the Building Works Agency, BSI as the National Standards Body and with all interested parties to deliver a system of building legislation that delivers safe and sustainable buildings. In doing so we need to seek to bring together the related requirements to reduce carbon emissions from the existing building stock and address the need for improved indoor environmental quality, in particular air quality, in our buildings in future.
We have learned much about our building stock over the past two years and need to apply those lessons to the way that we manage our buildings as well as how they are refurbished and built.
The net zero carbon strategy is only achievable by making significant changes to our building stock, which will require a very significant programme of remediation and refurbishment. It is vital that the lessons from both the Grenfell tragedy and the pandemic about fire safety and ventilation of buildings are learnt and inform the response to the net zero carbon strategy.
Everyone needs to understand that the Bill and new Regulator cover all buildings, not just “high rise residential”. It addresses how we design, build and renovate all our buildings in future. It introduces changes to the Building Act, Architects Act and Building Regulations that apply across the board and in many cases have been needed for years.
The more robust safety regime will take a proportionate, risk-based approach to all building work, including remediation. It will introduce new requirements for the competence of those who design and build as well as for operators of higher risk residential buildings.
A key area for CIBSE is the competence of designers and contractors, with new dutyholder roles for principal designers and contractors going well beyond CDM Regulations (2015). They will cover all building work that requires a building notice or deposit of plans, placing statutory duties on clients to satisfy themselves that those they employ are competent, individually and organisationally, to undertake the work. The draft regulations are available, along with a factsheet on the proposals for industry competence.
The new regime will be enforced by HSE and is backed by criminal sanctions. A specific aspect of the Bill that is relevant to manufacturing interests is that where they supply products in response to enquiries, or provide information about what products are suitable, they may be acting as designers and taking on corresponding duties and liabilities. And when a designer accepts a proposal from a supplier they may also be accepting liability. This will need close attention by lighting suppliers and designers including a review of insurance provisions.
There is very likely to be an increased focus on Engineering Council registration as evidence of knowledge, skills, experience and behaviour. We anticipate the introduction of mandatory CPD requirements and revalidation very likely. Even for those members who are not registered with the Engineering Council, CPD will need to be taken more seriously.
The Bill will reform the building control system and includes stronger regulatory powers for construction products with a new market surveillance and enforcement regime led by the Office for Product Safety and Standards (OPSS).
The Bill in detail
The Bill runs to 147 sections with 9 additional schedules covering 218 pages. It has 6 parts, with Part 1 a singles section overview. Part 2 covers the new Regulator, Part 3 makes many amendments to the Building Act 1984. Part 4 creates the new regime for higher risk buildings. Part 5 makes various provisions relating to safety and standards, including the establishment of a new homes ombudsman scheme and for complaints to housing association. There are provisions for construction product standards, as well as changes to the Architects Act. The following commentary introduces the major changes as they may relate to CIBSE members and the building services sector. It is important to recognize that this is a summary and for fuller detail on the proposals the Bill and the Explanatory Memorandum must be consulted.
“Buildings in Scope”
The Bill and its accompanying explanatory material uses the term ‘buildings in scope’ often. Unfortunately the use of this term is causing significant confusion and leading many to dismiss the Bill as not being relevant to them. This is because as well as the general provisions of the Bill described above, which apply to everyone and everything in building, there is a completely new stricter regime of controls for buildings of prescribed types or classes. The Bill allows for additional classes or types to be added to the list in future, so the term “buildings in scope” has been adopted as shorthand for “buildings in scope of the stricter regime for construction, operation, safety cases, the golden thread of information and certification to occupy”.
Many have concluded that buildings not in scope of the stricter regime – initially some 12,500 residential buildings, care homes and hospitals – are not in scope of the Bill. This is plain wrong.
The new regime applies to buildings that are at least 18 metres in height or have at least 7 storeys and have at least two residential units. It also applies to care homes and hospitals meeting the same height threshold during design and construction, but not during occupation. The scope of the regime will be kept under review by the new Building Safety Regulator. It will be ‘living legislation’ that will be updated to ensure that, where buildings with greater risks are subsequently identified, the scope of the law is adapted. This will provide greater protection for residents, or other building users.
The new more stringent regime places legal responsibilities on those who commission building work, participate in the design and construction process and those who are responsible for managing structural and fire safety in higher-risk buildings when they are occupied. These people will be called dutyholders during design and construction, and the accountable person when the building is occupied. When a building is refurbished this may involve both dutyholders and an Accountable Person as many buildings remain occupied during refurbishment.
Clause 32 of the Bill makes substantial amendments to the Building Act 1984 which include creating new Gateways for planning, design and completion of new higher rise homes and a new system of safety cases for them and for existing high rise homes, to run throughout the life of the building. And it gives residents of high rise buildings a much stronger voice in the management of their homes. All of this will be overseen by the new Building Safety Regulator.
Planning Gateway One has already been implemented and comes into force on 1 August 2021. The changes to planning legislation to introduce the new planning stage gateway for all higher risk buildings were announced on 10 May. MHCLG has now published further details on planning gateway one, alongside draft guidance. This is a significant legal milestone in the move to the new regulatory system.
The Bill gives the Regulator powers to impose competence requirements on those acting as Principal Designer and Principal Contractor. Clause 33 amends Schedule 1 to the Building Act 1984, with a new paragraph 5A, appointed persons, and paragraph 5B, general duties. The purpose of this new regulatory regime is to “regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment of existing buildings”.
These requirements will apply to all buildings. MHCLG intends to use these new powers to provide that in England the client can treat those persons appointed as a Principal Contractor or Principal Designer under the Construction (Design and Management) Regulations 2015 (CDM) as appointed for the purposes of the building regulations. In order to do this, it is proposed that the client should certify that the CDM person has the appropriate skills, knowledge, experience and behaviours to undertake the equivalent role under the building regulations.
There are also provisions to impose requirements on anyone else working on a building. The Bill will allow the Regulator “to impose duties on persons making appointments in relation to building regulations to ensure that those they appoint meet the competence requirements”. The stated aim is to “ensure everyone doing design or building work is competent to carry out that work in line with building regulations”. There will be a new Approved Document, providing statutory guidance.
Competence and higher-risk buildings
There are additional competence requirements for all who work on these buildings, and work is already underway with the Engineering Council to develop “Contextualised registers” for those members wishing to demonstrate the knowledge, skills, experience and behaviours considered to be necessary to work on those buildings in scope in the future. This is being undertaken by the membership and technical teams working with ET&M.
It is clear that there will be a significant additional focus on the competence of those working on “buildings in scope”, but this is likely to have more general impact, in particular due to the requirements for clients to satisfy themselves that those they appoint are competent. This may well have the effect of driving greater uptake of EC registration as a simple route to demonstrate competence to employers and to clients.
All those working on high rise residential buildings will be required to demonstrate and maintain competence. New statutory roles and responsibilities are being created for an Accountable Person and a Building Safety Manager who will have legal accountability for the operation of residential buildings in scope. A new body is being established to manage a register of Building Safety Managers, the Building Safety Alliance.
BSI has published BSi Flex 8670 Built environment – Core criteria for building safety in competence frameworks – Code of practice. Three role specific Publicly Available Specifications (PASs) are in development, setting out competence criteria for the statutory dutyholder roles of Principal Designer, Principal Contractor and Building Safety Manager. These will underpin the development of competence frameworks in response to the new requirements.
MHCLG have now produced a definition and principles for the Golden Thread of information that will be required for buildings in scope of the more stringent regime. MHCLG is currently developing its policy on the standards and guidance to support the Golden Thread, in close collaboration with the HSE.
Introduction of the Building Safety Bill in parliament marks the beginning of the formal legislative reform of the building safety regime in England. Devolved administrations are also looking very closely at the reforms and developing their own plans in parallel with England.
First Reading of the Bill on 5 July was the start of the process of legislation. Second Reading is now expected on 21 July, when the first substantive debate will occur. This is likely to focus on the leaseholder aspects of the Bill and payment for remedial works. The latest news about the Bill is available on the parliament website.
CIBSE has been at the forefront of the industry response to the tragic events at Grenfell Tower on the night of 14 June 2017 and has worked closely with the government and the industry on the Independent Review of Building Regulations and Fire Safety, the consultation on Building a Safer Future and the work of the Competence Steering Group, as well as contributing to the review of the Draft Building Safety Bill last autumn.
We aim to keep members up to date on Building Safety Bill developments. The further information at the foot of the page includes links to the Bill itself, the Explanatory Memorandum, the draft Regulations published so far the factsheets, transition plan and the response to the pre-legislative scrutiny report. All CIBSE members must be absolutely clear: the new BSR will be responsible not just for residential buildings over six storeys or 18m high. It will provide stronger oversight of the safety and performance of all buildings.
As the formal legislative process moves forward and changes to the building regulatory regime begin to take effect, CIBSE willcontinue to respond to the changes and prepare for the new regulatory regime. As a charitable and professional body CIBSE has a duty to take a lead, to show how the building services profession should respond to the reform agenda and we must continue to contribute to the overall objective of making our built environment a safer place to live or work in, and to do everything we reasonably can to prevent the events of 14th June 2017 ever being repeated.