Building safety regime – major changes

The Bill closes a legal loophole which left it unclear whether fire safety legislation in England applies to certain parts of multi-occupied residential buildings, such as the structure and external walls, including cladding, balconies and windows, and the entrance doors to individual flats that open into common parts.

The Bill will bring these areas within the scope of the Regulatory Reform (Fire Safety) Order 2005 (FSO) to ensure that the responsible person assesses and mitigates the fire safety risk associated with these parts of the building. Fire and rescue services will be able to take enforcement action and hold the responsible person to account if they are not compliant.

Katherine Metcalfe: "The implications of this new regime cannot be overstated."

Meanwhile, the Secretary of State for Housing, Communities and Local Government will gain powers to amend the FSO by way of secondary legislation, enabling the government to adapt legislation to align it with the new building safety regulatory system (see below), and to implement the recommendations of Phase 1 of the Grenfell Inquiry.

The UK government has also published a summary of responses received to a call for evidence on the application of the FSO in commercial buildings, which sought to identify any changes that might be needed and how they could be best achieved. The Home Office has now published a consultation, which should result in further legislation to provide clarity on identifying the responsible person and also a stronger sanctions and enforcement regime for those who breach it.

It remains to be seen whether similar changes will be made to the equivalent legislation in Scotland and Wales.

Building Safety Bill

Of even greater significance, just before the summer recess the UK government published its long-awaited Building Safety Bill, designed to implement the new regulatory regime for England recommended by Dame Judith Hackitt in her review of Building Regulations and Fire Safety. 

In the words of Robert Jenrick, the secretary of state at the Ministry of Housing, Communities and Local Government: “It will be the biggest change to our building safety regime for 40 years.” This new regime, which straddles fire and structural safety, will be underpinned by the criminal law, just like health and safety. Initially it will apply to all residential buildings over 18 metres in height, although the scope may be extended. 

The Health and Safety Executive (HSE) will oversee this new regime, with significant new enforcement powers. A gateway system will be introduced, requiring HSE approval to proceed with new developments at three stages: before planning permission is granted; before construction begins; and before occupation begins.

New duty holder roles, the accountable person and the building safety manager, will be created for new and existing residential buildings. They will have responsibility for preparing and maintaining a safety case for the building, and operating the building in accordance with a building assurance certificate.

The implications of this new regime for the way we design, build and manage our buildings cannot be overstated. It will carry significant compliance costs and fees will be payable to HSE to fund the new gateway and safety case system.

That is on top of the cost of remediating existing problems, which has been recognised by the £1 billion Building Safety Fund announced by the government in March to help with the cost of removing and replacing unsafe cladding from high-rise residential buildings. 

The Building Safety Bill is extensive and will be subject to a significant period of scrutiny by Parliament and the public. It is currently expected to receive Royal Assent in around a year’s time. The legislation will then be introduced on a phased basis.

Katherine Metcalfe is legal director at Pinsent Masons LLP