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Draft Building Safety Bill for England

Described by the Housing Secretary as, “the biggest change to our building safety regime for 40 years”, the Government is planning to introduce fundamental changes to the building control regime to improve building and fire safety in higher-risk buildings so that people will be safer in their homes. These fundamental changes are outlined in the Draft Building Safety Bill, which will be scrutinised by parliament over the summer before being brought to a vote in the autumn.

The Grenfell Tower tragedy, and the Hackitt Report that followed, exposed serious failings in the process of building and managing high-rise homes. In this short article we look at the proposed changes and what they mean for those who design, construct and occupy buildings. The objective of the Bill being, of course, to prevent a disaster like the Grenfell fire from happening again.

What are the changes and what do the new regulations require?

  • A new national Building Safety Regulator will be introduced within the Health and Safety Executive which will have new powers to raise and enforce higher standards across all buildings. The role of the regulator will be far reaching and includes taking over the building control regime for higher-risk buildings, enforcing sanctions for non-compliance, improving the competence of those constructing new buildings and overseeing the safety of those buildings in occupation.
  • The regulator will apply a new, more stringent set of rules for high-rise residential buildings which will apply to three stages or ‘gateways’- design, construction and occupation. For each of these stages, it will be clear who is responsible (the Duty Holder) and will require a ‘golden thread’ of information and key data to be passed through each gateway and maintained during its lifetime. It is likely that the Government will require that this digital record complies with building information modelling (BIM) standards.
  • Greater accountability for any mistakes, making sure that those responsible put them right. The client, principal contractor and principal designer will be required to sign a declaration that to the best of their knowledge, the building complies with building regulations. New criminal liability will be introduced for breaches of the building regulations.
  • Building inspectors responsible for signing buildings off as safe for people to live in will also have to follow the new rules and must be registered with the regulator.
  • The draft Bill will also give the Government powers to better regulate construction materials and products to ensure they are safe to use.
  • A New Homes Ombudsman will be introduced to help protect new build homebuyers and hold developers to account.
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What does it mean for our industry and those who work within it?

Although the draft Bill has a real focus on the residential sector, it is safe to assume that the application of changes to the building control regime will be considered in relation to other sectors going forward.

Responsibility and accountability

These changes are seeking to ensure that the full building life cycle (from planning application, design development, construction and occupation) is considered and that the historical failings that have been identified at each of these stages are addressed going forward.

The result will be that much greater rigour will be applied in the future through the appointment of competent persons, adherence to the building regulations through design and construction to ensure that the building can be signed-off by the regulator.

The new Bill also will make it an offence to give false or misleading information to the regulator. The penalties include up to two years in prison, unlimited fines or both. Those in senior roles in companies can also be liable.

Gateway approvals

The introduction of gateways to help ensure that designs meet the safety requirements is particularly welcome. However, the likely impact is that longer periods of time will be required for the submission, review and approval process to take place.

Gateway 1 will have to be passed at the planning permission stage and will utilise the existing process by which planning permission is granted. It will take the form of a Fire Statement (covering such matters as emergency vehicle access, adequacy of water supplies in the event of a fire etc) which will be submitted to the Local Planning Authority with the planning application.

Gateway 2 will mean that construction cannot commence until the regulator is satisfied with the design. Having successfully achieved gateway sign-off, the process might impact on the ability of the parties to implement design changes during the construction phase.

Gateway 3 will require all of the relevant documentation to be submitted to the regulator for approval before the project can be deemed to be complete. Hence, we expect to see this being linked to achieving practical completion (PC) and clients being unwilling to accept PC of a building until all of the certifications are in place. We can also envisage the introduction of new building contract clauses that allocate the time and cost risk of complying with the new regulatory requirements, along with mandated use of BIM by clients given that the required information is going to be submitted electronically.

Focus on training and competence

Companies will need to put in place new training processes and ensure that staff are adequately trained in the areas they work in. For example, the draft Bill contains a section which would amend the Architects Act 1997, allowing the Architects Registration Board (ARB) to remove people from the register if they have not undertaken relevant training recently.

The Government also has plans to improve competency in a range of other industry professions. Proof will be needed that a contractor has the skills to do the work to a high standard without resulting in a safety risk. Greater emphasis will be applied to the client’s existing duty to check the competence of those they instruct to undertake works.

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How will the new Bill impact Project Managers, Cost Managers and Principal Designers?

We anticipate that the adoption of the Bill will have a number of impacts for those undertaking these roles and examples may include:

  • More time will need to be built into programmes to allow for gateway submissions and approvals and/or responding to queries raised before approvals are granted.
  • When mapped against the most common forms of procurement such as D&B or any forms with contractor’s design portions (CDPs), the gateways could have a significant impact on the whole construction process from initial designs through to post contract change. For example, contractors will want gateways sign-offs before agreeing contract sums and commencing works so that the risks are mitigated. Therefore we are likely to see longer design periods being required and earlier subcontractor engagement to enable CDP elements to be signed off in advance of starting on site. This increase in durations will impact on appraisals due to increased costs either as a result of time related items such as preliminaries but also in respect of quality of design information and quality of installation.
  • Increased focus on competence of designers and contractors going forward meaning procurement activities such as the pre-qualification process might need enhancing to ensure that competence is fully assessed and evidenced.
  • Although the use of BIM is already widespread on the bigger projects, we might expect an increased use on smaller schemes to manage the ‘golden thread’ of information through the gateways. This may increase fees on the more modest schemes and therefore overall project cost for clients.
  • When acting as EA, the requirement to complete Gateway 3 is likely to become a pre-requisite of achieving PC. The process of granting PC may therefore become less flexible.
  • Projects will need to be managed through a period of uncertainty for the industry whilst the draft regulations are consulted upon and adopted. Even following the introduction of the new regulations, there will likely be a transition period, prior to commencement of enforcement, to enable the various disciplines in the industry to upskill. This could create some confusion and has the potential to introduce delays.
  • The Construction (Design and Management) Regulations 2015 will likely have to be re-written (or at least amended) which will be a further set of regulations that the industry will have to become familiar with. The HSE may even provide the industry with a long-awaited Approved Code of Practice (ACoP).

Nick Gul, Board Partner from G&T’s Principal Design & CDM Consultancy team commented that:

The Building Safety Bill will likely require the introduction of new (or updated) Building Regulations. It will also require significant amendment to (or even replacement of) the CDM 2015 Regulations and probably an Approved Code of Practice. Extensive training will be required across the industry to enable the various disciplines to upskill. All of this will require time, so we should not be surprised if the actual new regulations are not with us soon.”

John Alderson, Board Partner from G&T’s QS team also commented that:

If it becomes law, the new Bill has the potential to change the most commonly adopted procurement routes in use in the industry today. The changes will be driven by the need to de-risk the project in respect of the gateway approvals before lump sum prices are agreed or works commence on site. The increased scrutiny of the regulator could lead to longer programmes and increased costs to clients. That being said, the industry generally copes well with dealing with regulatory change.”

How does the draft Bill sit against the Government’s ‘build, build, build’ agenda?

The significant deregulation of the planning system recently announced by housing secretary Robert Jenrick does raise questions about a consistent approach to safety across different policy initiatives.

One specific example of how the two policies might conflict is in the expansion of permitted development rights, which will allow “vacant and redundant” offices to be converted into housing. A potential relaxation in planning restrictions will be welcomed by some in the industry however some professional bodies (and other prominent industry voices) strongly oppose them. Regardless of which camp you sit in, we have yet to understand how the proposed changes will sit against the new Bill. It’s possible that although a developer may have permitted rights under planning law, strict adherence will still be required with the Building Safety Bill in order to achieve building regulations approval.

Given the more stringent approach and the accountability that comes with it, questions are being asked about how the insurance market will respond and whether the roles will be insurable. Some are expecting significant increases in costs which could prevent schemes from proceeding.

There is no question that the objectives of the new Building Safety Bill are sound and are needed to help prevent future disasters. However, some believe that the new Bill could slow the industry down just at a time when the Government wants to speed it up.

Final thoughts

The measures contained in the Bill are far reaching. Over the coming months, the construction industry will need to get to grips with new laws, rules and regulations covering building safety in the knowledge that potentially large penalties will be applied for those who fail to adopt them in time.

Due to the wide and significant impact this could have at all stages of the construction process, it is likely that project programmes will extend and costs will increase. The true effects will not be known for some time after the changes become law.

Please Note: This article is based on G&T’s understanding of the Draft Building Safety Bill in its current form. The Bill will be subjected to pre-legislative scrutiny and will be examined by a parliamentary committee who will give feedback and recommendations on it. We suggest that expert advice is sought as the Bill evolves in the coming months prior to it becoming law.

Further Reading

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