Transforming building safety regulation: A look at the new Building Safety Bill

In July 2021, the then Housing Secretary Robert Jenrick unveiled further plans to reform building safety with the publication of an updated version of the Building Safety Bill 2021 (the Bill).

The Bill is a crucial part of the UK Government’s building safety reform programme, the development of which was triggered following the publication of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety in May 2018.

The Bill represents a significant overhaul of the regulatory regime and the publication of the latest draft has been eagerly anticipated, especially following delays due to COVID-19.

What is the Building Safety Bill?

The Bill amends a number of pieces of existing legislation (such as the Architects Act 1997, the Building Act 1984 and the Defective Premises Act 1972) and seeks to make wide ranging changes to building regulation, management and law.

In its current form it will apply to buildings above 18 metres high or with at least seven storeys that contain at least two residential units. It will also apply to hospitals and care homes meeting the same height threshold during design and construction. Such buildings are defined within the Bill and related draft regulations as “higher-risk buildings”.

It was notably described by the previous Housing Secretary Robert Jenrick as the “biggest improvement to building safety in nearly 40 years” and is expected to have a significant impact on residents of high-rise buildings as well as those working in the construction and management sector.

The Bill was first introduced in July 2020. A number of changes have already been recommended and it is currently expected that the Bill will be passed into law in mid-2022.

Key features of the Building Safety Bill

Creation of a new Building Safety Regulator

A key part of the Bill is the creation of a new Building Safety Regulator (the Regulator) within the Health and Safety Executive (HSE).

As outlined in the Bill, the Regulator will have three main functions:

  1. To implement a new regulatory regime for higher-risk buildings, and to be the building control authority for these buildings.
  2. To oversee the safety and performance of all buildings, including the performance of other building control bodies and understand and advise on building standards and safety risks.
  3. To support the competence of those working in the built environment industry and to manage the system of registered building inspectors.

The Bill requires the Regulator to establish three committees to support its work, including a Building Advisory Committee, a Residents’ Panel and a Committee on Industry Competence.

The Bill also grants the Regulator a range of enforcement powers to prosecute offences under the draft Bill and to issue compliance and stop notices.

Introduction of new obligations reforming building control and building regulations

The Bill proposes to make a number of amendments to the Building Act 1984 (and other legislation) which forms the current basis for building regulations and building control process. Many of the finer details of these changes will be the subject of secondary legislation but in outline some key developments include:

  1. Creation of new “dutyholder” regime, which will see responsibility for the safety of higher-risk buildings placed on key individuals during design, construction and major refurbishment.
  2. Introduction of a new regime for the management of higher-risk buildings in occupation, including creation of the role of the “Accountable Person” who will be legally responsible for the safety of higher-risk buildings in occupation.
  3. Changes to the rights and protections afforded to residents of high-risk buildings, such as their rights to redress under the Defective Premises Act 1972 and their liability to pay costs for remediation works.

Increased regulation of construction products

The Bill also proposes to strengthen the regulation of construction products to ensure that all products are covered by a regulatory regime. Specifically, the Bill:

  1. Creates powers for the regulation of all construction products placed on the UK market, allowing them to be withdrawn from the market if they are unsafe.
  2. Creates the concept of “safety-critical products”, which the government can place on a statutory list and regulate separately and “designated products”, which covers the same products regulated by the EU framework.

The Bill also provides for the establishment of a monitoring and enforcement regime to support the new regulatory regime. This provides the groundwork for the introduction of a national regulator for construction products. The government announced in January 2021 that this new regulator would operate within the Office for Product Safety and Standards (OPSS) and work with the Regulator and Trading Standards to encourage and enforce compliance with the relevant legislation.

Comment

We are clearly at the beginning of a rather lengthy legislative reform process. Whilst some further detail has been added to the latest draft Bill a substantial amount of detail will need to be added via secondary legislation. This will require significant consultation with the construction industry and the broader product safety community to ensure the Bill and related regulations are fit for purpose.

Whilst it is not possible to set a firm timeline for future developments ahead of scrutiny by parliament, the government expects the Bill to take 9-12 months to progress through to Royal Assent.

However, many aspects of the Bill, particularly those that will need to be expanded upon in secondary legislation, will not take effect for 12-18 months after the Act comes into force.

Given the considerable changes envisaged by the Bill and related legislation, and the significant investment that will be required to ensure compliance with the regime, and the increased enforcement activity based on creation of specific regulators, those working in the industry – including those now considered “dutyholders” - ought to start making preparations for its introduction now.

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