Following Dame Judith Hackitt’s recent Independent Review of Building Regulations and Fire Safety post-Grenfell, a talking point was the decision not to recommend an outright ban of combustible cladding (the government have, however, already indicated they will consult on doing so).
Still, the proposals contained in the review represent the most far reaching reform agenda facing this sector for decades. So what key changes are potentially ahead?
The report proposes an entirely new regulatory regime applying to multi-occupancy higher risk residential buildings that are 10 storeys or more in height. However the review suggests that the government may wish to consider extending many of these proposals to other categories of building, leaving the possibility of a wholesale change in the regulation of building design and management.
It is not clear why the 10 storey standard was adopted and there will undoubtedly be pressure on politicians not to adopt an artificial cut off point below which standards are significantly lower.
This regime is to be enforced by a new Joint Competent Authority comprised of Local Authority Planners, Fire Authorities, and the HSE, who have not previously had a direct role in enforcement relating to building safety post-construction.
The regime will be similar to the Construction (Design and Management) Regulations regime which applies to construction projects with a range of prescriptive duties applying to every stage of the building life-cycle including procurement, design, construction, occupation, maintenance and refurbishment.
Crucially there will be a shift away from prescriptive rules, such as the Building Regulations, to wide ranging principle-based and outcome focused regulations. The review states that such rules can be unhelpful in complex buildings as they encourage a silo mentality in which the consequential effects of changes to a design are not considered by reference to the underlying issues the rules were intended to solve. This is exacerbated by inconsistencies between the current Building Regulations Approved Documents which create confusion.
Enforcement will be governed by a risk-based approach with clearly assigned duties to ensure that legal responsibility and “ownership” of issues is clearly identifiable. The report makes clear that at every stage there will be a single dutyholder responsible for the whole building, ensuring a holistic focus on safety.
The creation of a single competent body is likely to be welcomed by some as it eliminates the current issue of conflicting guidance given under different pieces of legislation by different enforcement authorities (such as those responsible for enforcement of the Housing Act 2004 and Regulatory Reform (Fire Safety) Order 2005).
The review is highly critical of the sector’s mentality, referring to indifference, a lack of leadership, and a cultural “race to the bottom” on costs and therefore on safety. It is clear that Dame Hackitt considers that the sector has failed to learn lessons from the examples set by other sectors and to adopt best practice in relation to safety.
She advocates that the construction and fire safety sector display leadership by creating a body to provide oversight of competency requirements. Similarly industry produced technical guidance will be more tightly controlled as it will now be overseen by a government appointed body.
The report also criticises the ability of developers to effectively appoint their own regulator by using Approved Inspectors who are not independent of clients, contractors or developers, the report envisages that Approved Inspectors will have to elect either to produce consultancy and advice to dutyholders or will offer additional capacity to the regulator.
Fire safety is criticised as being less strong and secure than other advisory disciplines such as structural engineering. Whilst it shies away from specifying that government prescribe who is competent to carry out a fire risk assessment it recommends that professional bodies determine criteria to assist dutyholders in identifying competent individuals.
In relation to procurement, the report recommends the adoption of standards which encourage a long-term view so that there is an incentive to consider full life cycle costs, favouring low risk high quality solutions over short-term planning.
Residents will be given a means of seeking redress with no risk to themselves (such as the creation of a single ombudsman to deal with disputes). Conversely, residents will be subject to clear obligations to maintain the safety of their flats whilst having a right to be provided with information on fire safety, including fire risk assessments.
The review is critical of the process for testing and certifying products for use in construction, viewing it as disjointed and opaque. It is felt that the sector has not embraced best practice around traceability and quality control. Testing will be reformed to a more effective regime with periodic reviews of test methodology and greater market surveillance. Despite this there is no recommendation for test reports to be published, although it seems likely that industry will insist on stronger assurances from product manufacturers that they meet their claimed safety characteristics in the wake of Grenfell.
Many products, and the substitution of alternative materials in existing products are currently certified by reference to desk top studies. The review criticises this practice and recommends that where desk top studies take place they no longer be in-house exercises and should only be carried out by organisations accredited to run large-scale tests. Again the report seeks to strike a balance between avoiding prescriptive rules whilst creating greater oversight and accountability.
It is clear from the review that Dame Hackitt’s intention is that the rules will retrospectively apply to existing infrastructure. Clearly this has broader implications but the report states that it is not for the review to answer how making historic structures comply will be paid for, but to ensure that funding issues are not allowed to stand in the way of public safety. The issues associated with removal of cladding post-Grenfell in both the private and public sectors give us insight into the potential difficulties this will create and it is probable that any regime brought in on this basis would need clear transitional arrangements to enable dutyholders to spread the cost of compliance.
Unsurprisingly any new regulatory regime is recommended to be accompanied by new enforcement powers and obligations, including the obligation to periodically submit a Safety Case for approval to the relevant authority. This appears to be the mechanism whereby existing building improvements will be driven, as regulators must be satisfied that risk is effectively managed in a building in order to approve the Safety Case. For new buildings the Safety Case is likely to apply at the planning permission, construction commencement, and first occupation stages, with periodic submissions for ongoing approval thereafter.
The report is critical of the current complex legal regime governing such buildings. Penalties are too small, costs are rarely recovered, there is a two year limit on bringing proceedings, and this has led to fewer enforcement actions being brought over time (a fall of 75% in the last 10 years alone). Similarly enforcement is said to rarely lead to correction of the underlying issues which triggered the enforcement action. The report also highlights that many local authorities are said to be reluctant to enforce their legal responsibilities in this area.
The report proposes a regime similar to that already in place for workplace health and safety:-
Where non-compliance exposes residents to safety risk penalties should duplicate those for the Health and Safety at Work Act (which provides for unlimited fines that are now determined by reference to turnover). HSE are specifically tasked with helping to establish a sanctions and enforcement regime, suggesting this will closely duplicate the risk based approach and penalties applicable for health and safety offences; and
These recommendations will apply in both new build and refurbishment contexts, it is not entirely clear how the Safety Case review for ongoing safety in existing buildings will be enforced but this will clearly have to involve similar penalties for non-compliance.
The Chartered Institute of Housing has welcomed the report and urged government to implement it as soon as possible. It remains unclear whether the recommendations will be brought in, if so in what form, and whether they will be watered down or beefed up by political considerations. Given the highly emotive and public nature of the Grenfell Inquiry there will almost certainly be calls for as comprehensive a set of reforms as possible and its conclusions may also play a part in the ultimate form that any new regime takes.
Nevertheless for dutyholders and regulators alike this ambitious programme will provide significant challenges. The chief among these may well be cultural as building design has to adapt to take into account lifetime safety and to justify this in a Safety Case.
For industry bodies this represents an opportunity to improve technical guidance, competency frameworks and accountability and traceability in order to deal with the perception of Dame Hackitt that the sector is stuck in a “time-warp”. The more robust such improvements are the better placed the sector will be and the greater the confidence it will enjoy from its regulators when any reform does ultimately take place.
For those operating existing buildings the considerable uncertainty about the extent to which these obligations will apply to them will create difficulties. In light of this it is clearly enormously important that any new regulatory body sets out clear and consistent decision making frameworks well in advance of any Safety Case regime coming into effect. It will also be important to give industry time to comply and to implement any changes, particularly where these are retrospective in nature.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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