30 April The probable future of Fire Safety in Tall Building On 14 June 2017, a fire broke out in the 24-storey Grenfell Tower block of flats in North Kensington, West London, very early in the morning, just before 1:00 am. The fire caused 72 deaths, including those of two victims who later died in hospital. More than 70 others were injured and, fortunately, 223 people escaped. The Government is proposing to apply the new safety regime initially to all multi-occupied residential buildings of at least 18 metres, or more than six storeys (buildings “in scope”), but this can be extended to other premises. The new Building Safety Regulator will have a duty to keep the scope of the regulatory system under review and to provide advice to the government when the evidence suggests it should be extended. The new regulatory structure will initially apply throughout the lifecycle of new builds, and later to the occupation stage of existing buildings. There will be a new duty-holder regime placing greater responsibility on those designing and constructing buildings to explain how they are managing risks and demonstrating that the building is safe to be occupied. The Building Safety Regulator One of the new roles to be created is that of the Building Safety Regulator (the regulator). This regulator will also oversee the wider building and regulatory system and watch over efforts to assure the competence of those working on buildings. They will be responsible for all major regulatory decisions made at key points during the design, construction, occupation and refurbishment of relevant buildings. They will be drawing on the expertise and advice of other regulators and competent experts, such as fire and rescue services, local authorities and the Health and Safety Executive. Decisions will include whether to allow a building to be constructed and later occupied and whether the Accountable Person has demonstrated that appropriate actions to mitigate and manage fire and structural risks are being taken. The regulator will have a duty to keep the scope of the system under review and provide advice to the government when it should be extended. Highlighting the move away from local control, the Building Safety Regulator will also carry out functions at the national level, such as: Establishing a register of relevant buildings and other national systems Ensuring that residents’ complaints about safety issues are dealt with quickly and effectively Producing advice to help duty-holders discharge their responsibilities Advising on current and emerging safety risks in relevant buildings Hosting centres of excellence to strengthen enforcement, including specialist expertise to assist with prosecuting complex cases, and to develop best practice on engagement with residents The Building Safety Regulator will also have a wider role beyond buildings in scope and will carry out regulatory functions that will apply to all buildings. These include ensuring that designers and builders can access “cutting edge” advice on delivering safe, high-performing buildings; advising the Government on changes to the building regulations and Approved Documents; overseeing the performance of building control bodies; and advising on current and emerging risks to building safety and performance. A new oversight structure staffed by a wide range of specialists from across the built environment will replace the current Building Regulations Advisory Committee. The Building Safety Regulator will also oversee the assurance of competency of those working on buildings across all disciplines, to give confidence to duty holders and residents that people are competent to carry out their jobs ensuring quality, safety and compliance with building regulations. On the Hackitt review’s recommendation, the new Building Safety Regulator is being set up within the Health and Safety Executive so that it can work with the government to develop relevant legislation such as the Building Safety Bill – and will report directly to the Secretary of State for Housing. Duty holders During the design, construction or refurbishment of buildings, duty holders – including those identified in the Construction (Design and Management) Regulations 2015 (the client, the principal designer, principal contractor, designers and contractors) – will have formal responsibilities for complying with building regulations. A duty holder will usually be an organisation but could be an individual. Duty holders during the design and construction phases will also be responsible for meeting the requirements at two of three key sign-off points – gateway two (before the start of construction) and gateway three (before occupation) – where the client will need to demonstrate to the regulator that building regulations have been met and risks are being appropriately managed. After the occupation of the premises, the duty holder regime continues with the imposition of specific responsibilities on the Accountable Person, who will be responsible for The Accountable Person The duty holder during a building’s occupation. Under the proposals, they would be the person who has control of the building, is legally responsible for the maintenance and who is entitled to receive funds from the residents for this. They would be responsible for making sure that fire and structural safety risks in the building are reduced so far as is reasonably practicable. Where the accountable person is a legal entity rather than an individual, we propose that there should still be a single accountable person at Board level. Where a building is owned commonhold, the accountable person is likely to be the Commonhold Association. The Accountable Person will, in turn, appoint a Building Safety Manager approved by the Building Safety Regulator to deliver day-to-day functions under these obligations. The Accountable Person will be the individual, partnership or corporate body with the legal right to receive payments for service charges or rent from leaseholders or tenants. In most cases, this will be the freeholder or head lessee, including overall landlord or a management company. In complex building ownership situations, there could be more than one Accountable Person. The duties of the Accountable Person: Ensure that buildings which are in the scope of the new regime and are under their control are registered with the building safety regulator Ensure that the building safety regulator has been provided with an address in England or Wales at which the building safety regulator can serve notices on the accountable person Ensure that a named building safety manager is appointed for each of those buildings, that the building safety manager meets the competency requirements set by the building safety regulator and are registered with that regulator Ensure that adequate measures are in place to manage building safety in those buildings, including ensuring that the building safety manager has access to the funding and co-operation necessary to carry out their functions Comply with all requirements in the building safety certificate that will be issued by the building safety regulator – mandatory conditions will include the key elements of the new regulatory regime Carry out and provide the building safety regulator with a safety case demonstrating that they, as the accountable person, are taking action to ensure that the building safety risk to occupants is reduced so far as is reasonably practicable and comply with all requirements arising from the safety case For new residential buildings, the building safety regulator will require that an accountable person is registered with that regulator before it grants permission for the building to be occupied. For existing residential buildings, the government propose to introduce similar requirements and to implement them following a transitional period. Building Registration Certificate The Accountable Person will be responsible for applying for and meeting the conditions of the Building Registration Certificate. To register a building, the Accountable Person will have to provide information such as the core details identifying the building, as well as details of the Accountable Person and Building Safety Manager. The regulator may attach specific conditions to the certificate, with the Accountable Person obliged to comply or face penalties including possible criminal sanctions. In cases of non-compliance or poor performance, the regulator would have the power to add, amend or vary the conditions, as well as require the Accountable Person to appoint a replacement Building Safety Manager. A relevant building could not legally be occupied without a valid certificate. It would be a criminal offence for an accountable person not to make a valid application for its registration within the relevant time limit. For new buildings that are in scope, the building safety regulator would not permit the building to be occupied until a certificate has been issued and the building has been successfully registered. For existing buildings, the government are proposing a transitional implementation period that the accountable person must comply with It would be a criminal offence for an accountable person to breach conditions that have been agreed by the building safety regulator when issuing, reviewing or renewing a building safety certificate for a building in scope. The seriousness of the offence committed will be a key consideration when determining the level of sanction to apply and pursue. Non-compliance with conditions on the certificate may result in the revocation of the building safety certificate. Also, this may lead to the building safety regulator refusing to issue/renew a building safety certificate and/or for a prosecution to be pursued against the accountable person Building Safety Manager The Accountable Person will have to make available adequate resources to the Building Safety Manager – which can be a person or a legal entity – to comply with several tasks including Ensuring that those employed to maintain and manage the building have the necessary skills, knowledge and experience Maintaining information management systems to facilitate safe management of the building Maintaining the safety case for the building so that risks are proactively identified, and mitigating measures put in place and maintained Ensuring that necessary and appropriate building remediation is undertaken to ensure that the conditions set out in the building safety certificate are met Engaging residents in the safe management of their building through a Resident Engagement Strategy that includes routes of escalation for resident concerns Ensuring that the fire risk assessments for the whole building are undertaken and reviewed regularly, and any recommendations are undertaken in a timely manner Being responsible for reporting mandatory occurrences to the building safety regulator Safety Case Reflecting the approach of most other major hazard safety schemes, submitting a safety case report to the regulator will be mandatory. Building Safety Managers will be required to keep safety cases up to date as a way of providing themselves, and their residents, with the assurance that they understand the fire and structural risks in their buildings and are taking appropriate steps to mitigate and manage those risks. Risk assessment principles will be consistent with those that should be undertaken for fire risk assessments under the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order). A safety case should be a structured argument that goes beyond a risk assessment and demonstrates that fire and structural risks are being managed so far as it is reasonably practicable. It needs to be supported by a body of evidence and must show a compelling case that the building is safe for occupation and use. Moreover, safety cases should be kept under constant review. An evidence-based approach in which the duty holder must demonstrate to the building safety regulator that life-critical risks within a given building are being proactively managed. The Building Registration Certificate and safety case will be reviewed periodically by the regulator. In addition, a review could be triggered by a building refurbishment or a change of Accountable Person, or where the regulator considers it appropriate. Golden thread Echoing the Hackitt review, duty holders will be responsible for creating and maintaining the ‘golden thread’ of fire and structural safety building information. At the handover stage between gateway three and occupation, this key information will have to be handed over to the Accountable Person, who will continue to be responsible for the information remaining accurate and up to date. Other provisions in the Government’s proposed reforms include: Mandatory occurrence reporting, where any fire safety or structural event which is perceived to represent a significant risk to life in relevant buildings must be reported Protection for industry whistleblowers The need for duty holders to ensure that those they employ are suitably competent Gateways Three key stages in the building life-cycle where the duty holder must demonstrate that they are managing building safety risks appropriately before they are permitted to continue to the next stage of development. Gateway one occurs before planning permission is granted Gateway two before construction begins Gateway three before the building’s occupation For Clients, Principal Designers and Principal Contractors during design and construction, refusal of permission to proceed at the various gateway points by the building safety regulator will be the primary enforcement tool in order to incentivise compliance with the new regime. Carrying out work without having acquired the necessary permission by the building safety regulator to proceed through the gateway regime could lead to criminal offences Refurbishments Before a building in scope is refurbished, the Building Safety Manager will need to engage with residents on the proposals and update the safety case on any changes that might affect the safety of the building. If the refurbishment is subject to building regulations, an application will have to be made to the Building Safety Regulator who, depending on the scale of the refurbishment, may request any other relevant information. If the refurbishment is not subject to building regulations but could have an impact on fire or structural safety, the Building Safety Manager will still be required to notify the Building Safety Regulator, but work can start without waiting for a response. If occupying a building while undertaking refurbishment work carries a significant risk to residents, the Building Safety Manager must demonstrate that their safety can be assured throughout and that he or she has engaged with them on aspects that affect them and has provided that information to the design and contractor teams. Residents wanting to refurbish their own property will be required to notify the Building Safety Manager. If the work may impinge on the fire or structural safety of the building, or is subject to building regulations, the resident or contractor will need to notify the Building Safety Regulator before and on completion of the work. Throughout all refurbishment work, the safety case must be updated to demonstrate how risks are being predicted, planned for and managed. If a review of the safety case leads to the identification of safety risks that require remediation to protect residents’ safety, the Accountable Person will be expected to rectify the building to ensure the safety of occupants is prioritised. Building owners remain legally responsible for the safety of their buildings, and are expected to act responsibly and pay for remediation of their buildings. The role of the Residents Residents will be entitled to receive key information about the safety measures in place with new rights to request access to detailed information where appropriate. The Building Safety Manager will be required to “proactively engage” and communicate with residents to allow them to stay informed and participate in decision-making about the safety of their building. Where a complaint or concern cannot satisfactorily be resolved by the Building Safety Manager, the resident will be able to go directly to the Building Safety Regulator. As well as having new rights, residents will have a general duty to cooperate with the Building Safety Manager and avoid actions that could pose a threat to the fire and structural safety of the building. Where cooperation is not forthcoming, the Building Safety Manager will be able to enforce residents’ responsibilities where there is a risk to the safety of other residents. Construction products A new national construction products regulator will be responsible for: Market surveillance and oversight of local enforcement action Enforcement action with manufacturers where issues are judged to be national and/or significant Providing advice and support to the industry to improve compliance, and Providing technical advice to the government In addition, a new construction products standards committee comprising technical experts and academics will advise the Secretary of State on whether voluntary industry standards for construction products should become UK regulatory standards. The committee will also provide advice on the conformity assessment process and product test standards, and in particular, will advise on: The assumptions and weaknesses within the current testing regime, including the effectiveness and accuracy of current tests Ways to improve the testing regime and new tests to address the weaknesses Innovation in how construction products are tested. The Government says it has engaged with key stakeholders to ensure the establishment of the committee addresses some of the key issues on product standards identified by the Hackitt review, and in the phase one report of the Grenfell Tower inquiry. Industry competence The interim report of the industry-led Competence Steering Group, published in August 2019, proposed that relevant professional and trade bodies should increase competence in their own sectors through a number of recommendations. These include designing sector-specific competence frameworks and creating an overarching competence framework standard for all trades and professions, setting out benchmark competence requirements including relevant core skills, knowledge, experience and behaviours. In the meantime, BSI will establish a group to advise on the creation of a suite of national standards that will set out common principles for competence requirements and provide a framework for the three critical roles of Principal Designer, Principal Contractor and Building Safety Manager. These standards will be developed to provide consistency across independent assessment and third-party accreditation schemes. A new industry-led committee will also be established to oversee the longer-term development of the competence frameworks. The Government is also working with the Architects Registration Board to assess how architects maintain and enhance their competence throughout their careers. The Building Safety Regulator will also have oversight of the competence and performance of building control professionals. The Government intends to create a unified professional structure for both local authority staff and Approved Inspectors, maintaining competence throughout an individual’s career. This new structure aims to allow greater collaboration and knowledge-sharing and help address entry hurdles and retention issues to increase capacity. Enforcement The Building Safety Regulator will have powers to intervene, from providing informal advice to issuing ‘improvement’, ‘compliance’, or ‘stop’ notices, the breaching of which will be a criminal offence. The regulator will also be able to review or revoke the Building Registration Certificate and, where appropriate, to prosecute duty holders and/or the Accountable Person. The sanctions would be designed to reflect the degree to which safety has been compromised and the need to deter non-compliance. The new regulatory framework is designed to supplement existing requirements on multi-occupied residential buildings under the Fire Safety Order and the Housing Act 2004. Where a building is of mixed use, the Government will introduce duties to cooperate between the Responsible Person(s) under the Fire Safety Order and the Accountable Person(s) under the new regime. The Fire Safety Bill – introduced in parliament on 19 March 2020 – is designed to emphasise that under the Fire Safety Order, building owners and managers of all multi-occupied residential buildings must assess the risks from external walls (including cladding and balconies) and front entrance doors. Following a consultation, an update to Approved Document B will include measures requiring sprinkler systems and introducing the provision of wayfinding signage in all new high-rise flats over 11 metres tall. A full technical review of Approved Document B will also take place. The Government recognises that fire and structural safety issues can be exacerbated by poor procurement, including poorly designed tender specifications and processes, last-minute contractor appointments, lack of appropriate engagement with the supply chain and contract forms which prioritise low-cost solutions at the expense of building safety. The Ministry of Housing, Communities and Local Government will build on work already undertaken to develop practical guidance for the implementation of collaborative procurement methods for the procurement of buildings in scope. This work is overseen by a Procurement Advisory Group comprising procurement experts from industry, professional associations, government and the legal profession. The Government’s proposals for a new building safety regulatory system represent a considerable tightening of regulation through the lifetime of buildings in scope, and may also have a ripple effect on the safety of other buildings. But, it remains to be seen how legislation for the new regime will be drafted and subsequently implemented, and whether it will clarify the responsibilities of everyone concerned with the design, construction, management and occupation of high-rise residential buildings.