Building Safety Act
The Building Safety Act received Royal Assent and became an Act of Parliament on 28 April 2022. Introduced in response to the Grenfell Tower tragedy and Dame Judith Hackitt’s report on Building Regulations and Fire Safety, it is the most fundamental reform of regulation across the construction and residential property sectors in living memory. It transforms the law relating to design and construction of all buildings and operation of higher risk residential buildings. It will have an impact on the work of everyone in the construction sector.
The Act creates a Building Safety Regulator, responsible for the regulation of ALL buildings, with new statutory roles for designers and contractors on all projects.
The Act creates a new and more rigorous regime for the planning, design, construction and operation of prescribed classes of buildings, with new planning and building control gateways, accountable persons, safety cases and a statutory golden thread of information, all linked to a formal certification of the building by the regulator for fitness to occupy.
The Act strengthens the whole building control system. The new Regulator is responsible for professional standards and registration of building control officers, public and private.
The Act also contains significant provisions relating to construction products and the liabilities relating to defective products.
The Act introduces various leaseholder protections to reduce the liability of leaseholders for the costs of remediation of unsafe cladding.
CIBSE is totally committed to work with our members, their employers, government, including the new Building Safety Regulator, BSI as the National Standards Body and all interested parties to deliver a system of building legislation that delivers safe and sustainable buildings. In doing so we need to seek to bring together the related requirements to reduce carbon emissions from the existing building stock and address the need for improved indoor environmental quality, in particular air quality, in our buildings in future. It is essential that a systems based approach is adopted to address the various interventions that are needed to remediate unsafe cladding and reduce carbon emissions from buildings and these are not addressed as separate issues.
We have also learned much about our building stock over the past two years and we need to apply those lessons to the way that we manage our buildings in the future to deliver healthy infection resilient environments as well as looking at how they are refurbished and built.
The net zero carbon strategy is only achievable by making significant changes to our building stock, which will require a very significant programme of remediation and refurbishment. It is vital that the lessons from both the Grenfell tragedy and the pandemic about fire safety and ventilation of buildings are learnt and inform the response to the net zero carbon strategy.
Everyone needs to understand that the Act and new Regulator cover all buildings, not just “high rise residential”. It addresses how we design, build and renovate all our buildings in future. It introduces changes to the Building Act, Architects Act and Building Regulations that apply across the board and in many cases have been needed for years.
The more robust safety regime will take a proportionate, risk-based approach to all building work, including remediation. It will introduce new requirements for the competence of those who design and build as well as for operators of higher risk residential buildings.
A key area for CIBSE is the competence of designers and contractors, with new dutyholder roles for principal designers and contractors going well beyond CDM Regulations (2015). They will cover all building work that requires a building notice or deposit of plans, placing statutory duties on clients to satisfy themselves that those they employ are competent, individually and organisationally, to undertake the work. The draft regulations are available, along with a factsheet on the proposals for industry competence.
The new regime will be enforced by HSE and is backed by criminal sanctions. A specific aspect of the Act that is relevant to manufacturing interests is that where they supply products in response to enquiries, or provide information about what products are suitable, they may be acting as designers and taking on corresponding duties and liabilities. And when a designer accepts a proposal from a supplier they may also be accepting liability. This will need close attention from product manufacturers and designers, possibly including a review of insurance provisions.
A further consideration is that the provisions relating to defective products which give rise to safety deficiencies in buildings may create significant liabilities for building materials producers for the remedy of defective premises.
The Act is very likely to increase the focus on Engineering Council registration as evidence of knowledge, skills, experience and behaviour. We anticipate the introduction of mandatory CPD requirements and revalidation.. Even for those members who are not registered with the Engineering Council, CPD will need to be taken more seriously.
The Act will reform the building control system and includes stronger regulatory powers for construction products with a new market surveillance and enforcement regime led by the Office for Product Safety and Standards (OPSS).
The whole of the Act applies to England. Parts 3, covering the amendment of the Building Act and Part 5 dealing with construction products and architects apply in Wales, and part 5 also applies in Scotland and Northern Ireland.
The Act in detail
The Act runs to some 170 sections with 11 additional schedules covering well over 200 pages. It has 6 parts, with Part 1 a singlesection overview. Part 2 covers the new Regulator, Part 3 makes many amendments to the Building Act 1984. Part 4 creates the new regime for higher risk buildings. Part 5 makes various provisions relating to safety and standards, including the establishment of a new homes ombudsman scheme and for complaints to housing association.
There are provisions for construction product standards, as well as changes to the Architects Act. The following commentary introduces the major changes as they may relate to CIBSE members and the building services sector.
The following commentary introduces the major changes as they may relate to CIBSE members and the building services sector.
“Buildings in Scope”
The Act and its accompanying explanatory material uses the term ‘buildings in scope’ often. Unfortunately the use of this term is causing significant confusion and leading many to dismiss the Act as not being relevant to them. This is because as well as the general provisions of the Act described above, which apply to everyone and everything in building, there is a completely new and stricter regime of controls for buildings of prescribed types or classes. The Act allows for additional classes or types to be added to the list in future, so the term “buildings in scope” has been adopted as shorthand for “buildings in scope of the stricter regime for construction, operation, safety cases, the golden thread of information and certification to occupy”.
Many have concluded that buildings not in scope of the stricter regime – which will initially cover as some 12,500 residential buildings, as well as the design and construction of care homes and hospitals that meet the height threshold – are not in scope of the Act. This is simply wrong.
The new more stringent regime applies to buildings that are at least 18 metres in height or have at least 7 storeys and have at least two residential units. It also applies to care homes and hospitals meeting the same height threshold during design and construction or refurbishment, but not during occupation, since existing health and safety regulations covering them as workplaces already applies. The scope of the regime will be kept under review by the new Building Safety Regulator. It will be ‘living legislation’ that will be updated to ensure that, where buildings with greater risks are subsequently identified, the scope of the law is adapted. This will provide greater protection for residents, or other building users.
The new more stringent regime places legal responsibilities on those who commission building work, participate in the design and construction process and those who are responsible for managing structural and fire safety in higher-risk buildings when they are occupied. These people will be called dutyholders during design and construction, and the accountable person when the building is occupied. When a building is refurbished this may involve both dutyholders and an Accountable Person as many buildings remain occupied during refurbishment.
Clause 32 of the Act makes substantial amendments to the Building Act 1984 which include creating new Gateways for planning, design and completion of new higher rise homes and a new system of safety cases for them and for existing high rise homes, to run throughout the life of the building. And it gives residents of high rise buildings a much stronger voice in the management of their homes. All of this will be overseen by the new Building Safety Regulator.
Planning Gateway One has already been implemented and comes into force on 1 August 2021. The changes to planning legislation to introduce the new planning stage gateway for all higher risk buildings were announced on 10 May 2021. Government has published further details on planning gateway one, alongside guidance. This was a significant early legal milestone in the move to the new regulatory system. Planning Gateway One is now live and proposals are already being challenged. Designers now need to respond to the more rigorous planning gateway requirements on any new schemes that are classed as higher risk buildings
The Act gives the Regulator powers to impose competence requirements on those undertaking building work. Clause 33 amends Schedule 1 to the Building Act 1984, with a new paragraph 5A, on appointed persons, and paragraph 5B, general duties. The purpose of this new regulatory regime is to “regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment of existing buildings”.
These requirements will apply to all buildings. Government intends that these new powers will provide that in England the client can treat those persons appointed as a Principal Contractor or Principal Designer under the Construction (Design and Management) Regulations 2015 (CDM) as appointed for the further purposes of the Building Safety Act. In order to do this, it is proposed that the client should certify that the CDM competent person has the appropriate skills, knowledge, experience and behaviours to undertake the equivalent role under the Act.
There are provisions for requirements on anyone else working on a building. The Regulator may “impose duties on persons making appointments in relation to building regulations to ensure that those they appoint meet the competence requirements”. The stated aim is to “ensure everyone doing design or building work is competent to carry out that work in line with building regulations”. A new Approved Document is proposed to provide statutory guidance.
Competence and higher-risk buildings
There are additional competence requirements for all who work on these buildings, and work is already underway with the Engineering Council to develop “Contextualised registers” for those members wishing to demonstrate the knowledge, skills, experience and behaviours considered to be necessary to work on buildings in scope of the stricter regime in the future.
It is clear that there will be a significant additional focus on the competence of those working on “buildings in scope”, but this is likely to have more general impact, in particular due to the requirements for clients to satisfy themselves that those they appoint are competent. This may well have the effect of driving greater uptake of EC registration as a simple route to demonstrate competence to employers and to clients.
All those working on high rise residential buildings will be required to demonstrate and maintain competence. New statutory responsibilities are created for an Accountable Person who will have legal accountability for the operation of residential buildings in scope. BSI has published BSi Flex 8670 Built environment – Core criteria for building safety in competence frameworks – Code of practice. Further role specific Publicly Available Specifications (PASs) are in development, setting out competence criteria for the statutory dutyholder roles of Principal Designer, Principal Contractor. These will support the development of competence frameworks in response to the new requirements.
MHCLG have now produced a definition and principles for the Golden Thread of information that will be required for buildings in scope of the more stringent regime. Policy is currently being developed on the more detailed standards and guidance to support the Golden Thread, in close collaboration with the HSE.
The passing of the Building Safety Act marks the beginning of the formal legislative reform of the building safety regime in England. Devolved administrations are also looking very closely at the reforms and developing their own plans in parallel with England.
CIBSE has been at the forefront of the industry response to the tragic events at Grenfell Tower on the night of 14 June 2017 and has worked closely with the government and industry on the Independent Review of Building Regulations and Fire Safety, the consultation on Building a Safer Future and the work of the Competence Steering Group, as well as contributing to the development of the Building Safety Act over the past two years.
We aim to keep members up to date on Building Safety Act developments. The further information at the foot of the page includes links to the Act itself, the Explanatory Memorandum, and the draft Regulations published so far, as well as the factsheets and transition plan.
All CIBSE members must be absolutely clear: the new BSR will be responsible not just for residential buildings over six storeys or 18m high. It will provide stronger oversight of the safety and performance of all buildings.
As the formal legislative process progresses and changes to the building regulatory regime begin to take effect, CIBSE will continue to respond and prepare for the new regulatory regime. As a charitable and professional body CIBSE has a duty to take a lead, to show how the building services profession should respond to the reform agenda and we must continue to contribute to the overall objective of making our built environment a safer place to live or work in, and to do everything we reasonably can to prevent the events of 14th June 2017 ever being repeated.