Event - CE Midlands Construction Summit

The Fire at Grenfell Tower in June 2017 has led to the largest review and reform of the regulation of building safety for over 60 years.

The Building Safety Act 2022 associated Regulations and changes to the Building Act 1984 have established a new regime for the enforcement of Building Regulations and has created additional duties for all of those involved in the design, construction and management processes.

Alongside strengthened enforcement powers and sanctions for work which fail to meet standards, specific obligations are being placed on dutyholders, including the Client, Principal Designer and Principal Contractor. Whilst the framework mirrors that established in respect of the Construction Design and Management (CDM) Regulations, the roles under these measures relate to specifically to Building Regulation Compliance and the Principal Designer etc appointed for CDM may not be the same Principal Designer for Building Regulations. The reason for different individuals being responsible rests with the need for those fulfilling the roles under the Building Regulations to have sufficient knowledge and be competent to address issues of Building Regulations and Building Safety.

To ensure that the new regime achieves its goals of improved building safety and new Building Safety Regulator (BSR) has been established and the health and safety Executive are carrying out this role. In addition to having the necessary powers to enforce the requirements, the Regulator will assess the competence of Building Control bodies and the individuals working in Building Control, creating a national register of competence for Building Inspectors. Although other professions may not be subject to compulsory registration it will be necessary for dutyholders to demonstrate the necessary competence in respect of Building Regulations to carry out the role they are undertaking.

The Building Safety Regulator will also take on the direct responsibility for assessing Higher Risk Buildings (HRBs), removing these from Local Authority and private sector Building Control bodies. HRBs will initially be those buildings containing residential accommodation with a top floor level of over 18m above ground and in addition to new processes for the construction and alteration of such buildings, requirements have been introduced for the registration, assessment of safety and management of existing HRBs.

Although the driver for the changes were the tragic events at Grenfell Tower, the changes introduced are not restricted to tower blocks and HRBs and the majority of the new requirements and responsibilities will apply to all building works.

The six parts and 11 schedules of the Building Safet Act 2022 establish to role of the Regulator, the framework for HRBs, changes to the Building Act 1984 and other matters such as the introduction of a New Homes Ombudsman and tighter controls on construction products.

In recent months over 15 different statutory instruments have been put in place to deliver the changes.

This month registration of existing HRBs began will all such premises requiring registration by April 2024. Having established pathways for Building Control personnel to demonstrate competence, registration as Building Inspectors has now commenced, with all of those working in building control and carrying out restricted functions such as determining compliance also being required to be registered by April 2024.

Part of the new processes includes the principle of key decision points or Gateways for HRBs. Gateway One, at Planning stage has been implemented for a while and requires a fire statement o be included with the Planning Application to outline how fire safety issues have been addressed and considered in the proposals. Planning permission will be withheld for relevant premises if this is not provided.

Gateway Two will see a restriction placed on the commencement of work on site if Building Regulation Approval has not been given in respect of key safety aspects, such as structural design and fire safety. The Client will also have to demonstrate how they have assured themselves that the Principal Designer and Principal Contractor are competent at this stage.

And finally, Gateway Three will prevent occupation and use of a building until works are in full compliance. There is a responsibility for the Client, principal Designer and Principal Contractor to confirm that work is in compliance before the Regulator will consider issuing a completion certificate.

Dutyholders, which includes all of those involved in design and construction have an obligation to only work on aspects within their level of competence and to share all relevant information with other dutyholders and the Regulator, they also have to ensure compliance with all the Building Regulations, not simply those relating to structural and fire safety, and they must comply with the requirements of the new regime. All of those appointing others as part of the process must ensure that those parties have the necessary skills, knowledge, experience and behaviours to design and carry out the work.

For the purposes of the Building Regulations the Client is the person commissioning the works, although in respect of existing buildings the building owner may be considered the Accountable Person, ultimately responsible for the building’s safety. The Client is responsible for checking the competence of the Principal Designer and Principal Contractor. This is not limited to only HRB projects.

Clients must make necessary arrangements for planning and managing the project and must allow sufficient time and resources to enable compliance with Building Regulations to be achieved.

When dealing with Higher Risk Buildings the Client must give a declaration before work commences that the Principal Designer and Principal Contractors competence has been assessed and they are capable of determining compliance for the project.

Principal Designers and Principal Contractors are responsible for checking to competence of the other designers and contractors involved with the project. Any dutyholder has a responsibility to inform the Client if they do not believe another party is competent to carry out the role assigned.

Principal Designers and Designers must not start work until they are satisfied that the Client is fully aware of their responsibilities, they must also ensure the project as designed will comply with Building Regulations and record and share information relevant to the project. It is not sufficient in terms of designing a project for compliance to rely upon Building Control to identify any areas of non-compliance.

Similarly Principal Contractors and Contractors must not start work until they are satisfied that the Client is fully aware of their responsibilities, they must also ensure the project as constructed will comply with Building Regulations and record and share information relevant to the project. It is not sufficient in terms of designing a project for compliance to rely upon Building Control to identify any areas of non-compliance.

Building Control, whilst assessing the project for compliance do not carry out design or construction and can only advise on the requirements of the legislation and standards, they can not advise on design. Building Control also have an obligation to advise the client if any designers or contractors are not competent.

When dealing with a HRB, the Client must sign a statement confirming that to the best of their knowledge the works meet the requirements of the Building Regulations, and both the Principal Designer and Principal Contractor must provide a similar declaration.

Prior to the changes the possible consequences of contravening the Building Regulations were Prosecution of the person carrying out the work (usually the builder), resulting primarily in fines being imposed, and Enforcement Action, serving notices on the owner to rectify any defect. The new regime has introduced increased time limits for action to be taken as well as introducing the provision of Contravention Notices to be issued to rectify issues during construction and Stop Notices to cease all work until major contraventions are rectified.

Changing Building Control to a regulated profession requiring compulsory competence registration of Building Inspectors has also introduce new offences of impersonating a Building Inspector and to address a Building Inspector operation beyond the limits of their registration.

It is critical to the safety of building throughout its lifecycle that those using and managing the building in the future have accurate records of design decisions, standards applied, construction materials and methods and any changes which are based to the building during its life. To effectively managed existing buildings much of this information may have to established from surveys of the building but, for new projects a Golden thread of information has to be established and so dutyholders have to have systems in place that can capture and store information from the start of the design process through to the completed project and beyond. This information will need to include any assumptions made about how the building will be used together with the information supporting key decisions.

On completion, before occupation it is anticipated that information should be in place to clearly show how all of the functional requirements of the Building Regulations have been met and these would normally include as built plans and specifications together with details of changes made since the approved design. All data and certification produced during testing and certification will also form part of the Golden Thread of information.

Addressing the design and construction of new buildings is only part of the new regulatory regime. There are a large number of existing Higher Risk Buildings in the Country, and whilst the majority of these may not include cladding of the type causing concern, there is a nee to ensure the safety of these buildings and those who live in them.

Accountable Persons are those who own the building, and they have specific obligations and duties under the legislation. All HRBs should now be registered with the Building Safety Regulator and an assessment of building safety risks must be carried out as well ad detailing how these risks will be mitigated and managed. In addition, Accountable Persons will have to establish a residents engagement strategy for their buildings and establish a system of reporting an occurrence. Any changes made will also need to be recorded as part of the Golden Thread of information for the building.

In some cases, there may be multiple owners or Accountable Persons and, in such cases, a Principal Accountable Person will be responsible for co-ordinating others and carrying out the duties of the role.

Once registered all existing HRBs will be placed upon a national register and new HRBs will need to be registered before occupation. Over a transitional period, all registered HRBs will be subject to a Building Assessment Certificate, however the assessment and issuing of such certificates will take a considerable period for all HRBs and risk assessments will be carried out to address the most critical first.

A key aspect of continuing safety in buildings once occupied is the residents voice and there is a requirement to develop a resident engagement strategy and include residents in decision making in respect of safety matters. Part of this includes a framework for incident reporting and addressing complaints and ultimately unresolved issues may escalate to the BSR.

The acts or omissions of building occupiers can significantly change the level of risk or create hazards, as a consequence residents will be obliged to not act in a way which creates a significant risk of structural or fire safety failure, interfere with any equipment or item which is in place to address safety and they must comply with any reasonable request made by the Accountable person to allow them to fulfil their obligations.

Although much of the necessary legislation is already in place and the majority of the proposed changes will be in full effect within the next 6 months the industry is largely unprepared for the extent of the changes and the new obligations placed upon everybody.

At Acivico Building Consultancy we have been working towards the new regime for a number of years and whilst nobody can fully anticipate exactly how the proposals will affect our sector, we believe we have the necessary understanding and competence to continue to assist those developing projects within Birmingham and help steer you through the changes.

If you need further general information or guidance in respect of how the changes relate to your current or future projects, then we are more than happy to assist you.