Legal, Opinion

10 building safety issues construction must tackle

The draft Building Safety Bill and the latest Industry Safety Steering Group report highlight areas where construction needs to change – and some home truths, says Rebecca Rees.

It has been a busy month for building safety: the Ministry of Housing, Communities and Local Government (MHCLG) published its long-awaited draft Building Safety Bill on 20 July and the second annual report from the Industry Safety Steering Group (chaired by Dame Judith Hackitt) was published a couple of weeks later. 

Both the draft Bill and the annual report represent different parts of the same conversation: how do we implement complete regulatory reform and achieve industry culture change in a way that will rebuild public confidence and improve building safety?

Both documents highlight several key areas the sector must tackle.

1. Leadership is needed but is lacking

The annual report notes that although some organisations are making headway to improve building safety, many are not and such a highly fragmented sector suffers from a lack of widespread, proactive leadership. Hackitt particularly singles out professional bodies and building control bodies in this respect and demands that they urgently address the need to demonstrate and deliver leadership that drives a shift in culture. The annual report suggests that one easy win on this front would be for the built environment sector to put aside self-interest and the excuse of commercial pressures and rally around such strategic plans as the Construction Leadership Council’s recovery plan for the sector. 

2. The competency challenge

Hackitt has also criticised what she sees as the slow progress being made in the built environment and fire safety sectors in achieving a coherent approach to raising competency standards. The final report of the Competence Steering Group (CSG), Setting the Bar, will soon be published and the group is working with the British Standards Institution to establish clear and consistent routes for assessing and assuring competence. Third party accreditation and competency will be hallmarks of the new regime and all organisations in the sector will be called upon to embed good practices ahead of legislation being finalised. 

3. Do not procrastinate

Hackitt’s clarion call from the outset has been for the sector to start implementing the recommendations she first set out in 2018 immediately rather than wait for legislation: "no one should need to wait to be told to behave responsibly". Examples of pre-legislative change being undertaken by clients include the reinstatement of the clerk of works role, being more prescriptive in specifications, maintaining a clearly-defined brief and keeping close control of product substitution. All of these examples show that the sector can effect change by assuming more responsibility for the buildings they construct: legislation should only be needed for those recalcitrant landlords who fail to step up and shoulder their responsibility.

4. Collaborate to drive change

Previous attempts to "rethink construction" or "construct the team" using collaborative models have fallen out of fashion and Hackitt has noted that although pockets of good practice exist, processes to share examples of such across the wider industry and not always in place. Hackitt is therefore keen to promote the Building Safety Charter created by the Early Adopters Group, making sure that it has teeth and that those organisations who fail to deliver good quality and safe outcomes are named.

5. Rebuild confidence by looking further afield

Hackitt has always drawn on the expertise and experience that exists outside of the construction industry for best practice. Lessons learned from the oil and gas, nuclear and civil aviation sectors can be gleaned from her recommendations for building safety. Interestingly, the regulatory journey of the financial sector following the global financial crisis has been highlighted in the annual report and recounts the financial regulator’s focus on large institutions and the imposition of large fines, as well as the use of high profile criminal cases to act as a deterrent and a spur for behavioural change in the financial sector. Could this be a pointer for the plans Hackitt has for the Building Safety Regulator?

6. The Regulator’s enhanced role

The draft Bill and the annual report emphasise the need for a proactive, suitably empowered and expert Regulator. The Regulator will be a new division of the Health & Safety Executive (HSE). There are many examples in the explanatory notes to the draft Bill where MHCLG stresses the need for the Regulator to adopt much more than a latent regulatory role going forward. Indeed, under the new legislation, the Regulator is under an obligation to set up consultative committees, seek feedback and information from the sector and recommend amendments and updates to the building safety regime so that it remains dynamic and effective as the sector begins to change. 

7. The need for carrots and sticks

The Regulator also has an impressive range of sanctions at its disposal in order to ensure compliance with the new regime and penalise those that fail to discharge their building safety obligations. Offences include giving false or misleading information to the regulator. The penalties range from up to two years in prison, to unlimited fines, or both. In respect of offences committed, those in senior roles in companies can also be liable if an offence is committed with “their consent or connivance” or is attributable to their neglect. 

8. The rights and responsibilities of residents

The constant objective at the heart of the regime is to ensure that residents feel safe and are safe in their homes. To this end, the draft Bill provides residents with significant rights of access to information about their homes, direct access to the Regulator via the Residents’ Panel, a New Homes Ombudsman and the removal of the "democratic filter", enabling social housing tenants direct access to the Housing Ombudsman. Nevertheless, this comes at a cost, with the draft Bill allowing landlords to recharge costs relating to building safety back to long leaseholders. Further, Part 4 of the draft Bill includes a significant list of implied terms designed to ensure that residents play their part in ensuring that the homes they live in feel safe and are safe. 

9. Navigate the gateways and preserve the Golden Thread

The dutyholder regime during the design and construction phase will be fleshed out in secondary legislation, along with the precise requirements of the gateway process at three key points (planning, pre-construction and pre-occupation). Nevertheless, those projects currently on site or about to go on site, would be well served if dutyholders create and preserve a "golden thread" of data now. This additional administrative burden now should avoid costly, disruptive and intrusive surveys later, when the landlord subsequently applies for its Building Assurance Certificate.

10. Building control gets a refresh

The draft Bill obliges the HSE to create a single regulatory and competency approach to building control. A register of building inspectors and building control approvers (formerly Approved Inspectors) will be created, with the former comprising a new role: to provide local authorities and building control approvers with advice. Most pertinently, the draft Bill removes the right for a client building a higher-risk building to select their own building control body: for those projects, the relevant building control body will always be the Regulator.

Rebecca Rees, is a partner at Trowers & Hamlins LLP and lead of the cross-firm Building a Safer Future team.

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