Key proposals for reform of the building and fire safety regulatory framework

This article was co-authored by Aoife Dunne, Litigation Assistant, London.

Following the Grenfell Tower fire, Dame Judith Hackitt was commissioned by the UK Government to conduct an independent review into building regulations and fire safety, with a particular focus on regulations applied to high rise residential buildings.

Concluding that the current system is not fit for purpose, Dame Judith Hackitt’s review ‘Building a Safer Future’ (published in May 2018) made 53 recommendations to improve and fundamentally change the building and fire safety regulatory framework, and provide for more rigorous enforcement. The recommendations also included changes to the way that high rise buildings are designed, constructed and maintained.

The government accepted every recommendation and produced an implementation plan last December, followed by an extensive consultation ‘Building a safer future: proposals for reform of the building safety regulatory system’, issued in June 2019.

If the proposals are implemented it appears that they will have a significant effect on the design, construction and management of buildings from as early as the planning stage. In this article we explore what the proposals will mean, how they will work in practice, and how they will change the building and fire safety regulatory framework.

Dutyholders and the ‘accountable person’

The nature of construction projects means that the differing responsibilities across the supply chain are complex and can be difficult to unravel. One of Dame Judith Hackitt’s key recommendations aims to solve this by having “a clear and identifiable dutyholder” responsible for “the fire safety outcomes and performance of the building.”

Whilst this may help to identify the relevant dutyholder, it may also cause concern for those who are placed in that role because of the wide-ranging duties that would fall within their remit under the new proposals.

Under the proposals the safety of a building must be an integral consideration right from the beginning of a building’s lifecycle. The proposals include the establishment of five ‘duty holders’ (client, principal designer, principal contractor, designer and contractor). They will mirror the roles applied under the Construction (Design and Management) Regulations 2015, where there are clear responsibilities throughout a buildings design, construction and occupation, defined by regulations and supported by guidance.

The dutyholder will be an individual and/or corporate body and will ultimately be accountable (and criminally liable) for managing the building’s safety as well as the safety of people in and around the building.

The new allocation of responsibility will be a significant sea change as the accountability of the dutyholder cannot be delegated. Where the dutyholder is a corporate body, careful consideration will need to be given to the role, the processes and procedures in place to support the role, and how they will ensure as far as possible that the relevant persons are competent to discharge the duties. The legal duties and liabilities will need to be understood, as well as scrutinised by the corporate body/organisation’s committees.

The dutyholder will also be required to produce a “safety case”, a type of permissioning regime used in industries such as nuclear, petrochemical and railways, to show that they are taking actions to reduce a building’s safety risks.

‘Gateway Points’ and ‘golden thread’ of information

Three ‘Gateway Points’ will be introduced to strengthen regulation. Dutyholders will have to work co-operatively and discharge their specific duties to ensure that the regulatory requirements of each of the Gateway Points have been met, before the next phase of the development can proceed. By way of a brief summary:

  1. Gateway Point 1: will be applied prior to construction and focuses on the planning permission stage. This will now require the applicant to submit a ‘fire statement’ with their planning application. This leads to additional obligations on the relevant planning authority which will be required to consult with the relevant fire and rescue service.
  2. Gateway Point 2: must be achieved before construction commences. The design stage will now “require dutyholders to demonstrate how they comply with building regulations by providing full plans and supporting documentation”.
  3. Gateway Point 3: the final gateway must be met before occupation of the building. Dutyholders will be required to hand over building safety information to the accountable person in the occupation stage, before occupation will be allowed.

Importantly, occupation is where the concept of a new ‘golden thread’ of information will feature significantly. Clients must, among other things, create and maintain a complete golden thread of information which will be stored electronically. This will detail “the maintenance, testing and inspection routine, as well as how fire risk assessments have been undertaken and actions implemented.”

It must be updated and remain accurate throughout the building’s life-cycle, reflecting any changes made to the building, so that those responsible for the management of safety understand the original design intent.

Accountable person in occupation

There will also be an increased focus on long term maintenance and management of buildings post-construction. The occupation stage also introduces the role of ‘building safety manager’ with responsibility for ongoing fire and structural safety risk. This will need to be a named individual, although it is likely that it could be delivered as an organisational function rather than a specific role.

The building safety manager will need to demonstrate competence against an established competency framework and is likely to require a licence to practice.

Who will regulate all of these changes?

It will be the responsibility of a new single ‘building safety regulator’ to establish oversight of the building safety regulatory regime and to enforce these new requirements. They will oversee the design and management of buildings, with a strong focus on enforcing the stricter regime for buildings, using a range of powers.

It is encouraging to see developments aimed at improving the regulatory regime. Whilst it may be some time yet before any legislative changes are implemented, organisations should be proactive in scrutinising their own working practices, competencies and behaviours and put in place any relevant and remedial measures to make sure as far as possible, that their buildings are safe.

This article was co-authored by Aoife Dunne, Litigation Assistant, London.

Read more items in Health, Safety and Environment Brief - December 2019