The Government has published draft legislation that it says will provide the ‘biggest improvements to building safety in nearly 40 years’.

The Bill puts “in place new and enhanced regulatory regimes for building safety and construction products, and ensure residents have a stronger voice in the system”. It also encourages a culture of accountability and responsibility amongst developers, property managers, and residents linked to high-rise residential and mixed-use buildings.

A Building Safety Regulator will be at the heart of the new regime, established as part of the Health and Safety Executive (‘HSE’).

Key aims will include:

  • Developing a new, stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high-performance standards
  • Responsibility for appointing a chief inspector of buildings and recruiting inspection staff
  • Strengthening enforcement and sanctions

For the first time, new build homebuyers will also have their right to complain to a New Homes Ombudsman, protected in legislation, and developers will be required to be a member of the scheme. The New Homes Ombudsman will hold developers to account, including the ability to require developers to pay compensation.

Together, measures in the draft Building Safety Bill, Fire Safety Bill, and Fire Safety Order Consultation are aimed at improving safety standards for residents of all blocks of flats of all heights, with even more stringent approaches and oversight for buildings in scope.  

Main elements of the Fire Safety Bill include a clarification that the scope of the Regulatory Reform (Fire Safety) Order 2005 (‘RRFSO’) ‘includes the external walls of the building, including cladding’ as well as ‘fire doors for domestic premises of multiple occupancy’. This places a legal requirement on building owners to inspect cladding, balconies, windows and fire doors in block of flats. All residential buildings over six storeys will be covered by its new fire safety regime, while sprinklers will be required on all buildings above 11 metres.

Where responsibility will lie

When new laws are in place, builders of new residential high-rise buildings or carrying out repairs or refurbishment will need to seek regulatory approval. The three 'gateway' stages will be planning permission, pre-construction and pre-occupation.

The client, principal designer and principal contractor will be required to produce and co-sign a declaration confirming that, to the best of their knowledge, the building complies with building regulations. Once satisfied, the new regulator will then issue a building registration certificate.

An 'accountable person' will have legal responsibility for ensuring that the fire and structural risks in the building are understood, and that appropriate steps and actions to mitigate and manage these risks are taken.

Local authority building control departments will provide a supporting, technical role where required. A recruitment drive has increased the number of surveyors, who need new competencies before being allowed to practice.

Legal concerns

The difficulties that thousands of shared owners and leaseholders face in trying to sell or remortgage their flats are now being compounded as surveyors and mortgage lenders require assurances that the materials on their buildings are compliant with the requirements of the RRFSO.

Investors and insurers are also alert to the cost of remediation works and unlimited financial penalties that can be imposed if buildings are not compliant with the RRFSO. They require assurance that the appropriate fire safety management systems are in place and regularly audited.

The Government’s Advice Note 14 is aimed at providing clear guidance for building owners on what steps to take with regards to non-ACM materials on the external walls of their high-rise buildings. At the moment the Advice Notice is simply guidance, but in due course it anticipated that it will eventually become a legal obligation.

The note gives strong guidance to owners of buildings above 18 metres to take “general fire precautions” in their buildings and to make sure that external cladding and insulation wall systems are ‘safe’. This includes establishing that materials are of limited combustibility or have achieved the Building Research Establishment’s BR 135 classification.

Scale of work required

Key concerns now are that, over the coming months, the construction industry and other related sectors will need to act quickly to comply with substantial amounts of new laws, rules and regulations covering fire safety – with potentially large penalties for those who fail to adapt in time.

Furthermore, many social landlords, building owners and leaseholders are unsure about their potential liabilities around the substantial cost of removing combustible cladding and other unsafe materials – with many residents unable to move from homes that can’t be sold.

The need to speed up the remediation and certification as safe of high-rise buildings could not be more obvious, but substantial hurdles remain and it is likely that further legislation will be required in due course.

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