High-rise building safety reform: the new building safety regulator

The proposal goes significantly further than Dame Judith Hackitt's recommendation to create a 'joint competent authority', through which existing regulators would work together.

The government's consultation leaves open the possibility of establishing building safety as a new function of an existing regulator, rather than creating an entirely new body. We think the most likely outcome is that the Health and Safety Executive (HSE) will take on this new role due to its national role; the alignment of the new system with health and safety dutyholders under the 2015 Construction (Design and Management) Regulations; and HSE's experience with safety case regimes.

The consultation is open until 31 July 2019. The government will consider responses over the summer and publish its response in the autumn. We expect any changes from the published proposals to be fine tuning, rather than a fundamental rethink.

Organisations in the main roles can therefore start to prepare now by:

• engaging with professional and trade bodies on the development of competency frameworks;
• reviewing contracts and procurement processes;
• implementing information gathering and management systems to capture the 'golden thread' of information about all buildings in scope; and
• reviewing policies and procedures to ensure robust oversight of building safety at board level.

Remit of the new building safety regulator

It is proposed that the new building safety regulator will have a wide and ambitious remit, including:

• oversight of the building regulatory system;
• oversight of industry competence initiatives;
• an ombudsman-type role for resident complaints;
• oversight of a new mandatory occurrence reporting system;
• an overriding statutory objective to promote building safety through advice and guidance.

The proposed functions of the new regulator are not only wide-ranging but will demand access to specialists in multiple disciplines. Proper resourcing from the outset will be crucial if success is to be achieved. However, with funds for other regulators already stretched, partnership and collaboration with the private sector will be required.

It is also unclear how the new building safety regulator will interact with existing regulators such as fire and rescue authorities and local authority building control, and there is a danger that the new regulator will add another layer of complexity to an already complex regime. The outcome of the Home Office's call for evidence on the interaction of the new regimes with fire safety legislation and housing standards will be important to resolving these issues.

Oversight of the building regulatory system

This will be a central function of the new regulator. It will include:

• maintaining a register of buildings, both new and old, within the scope of the regime, together with the identity of the relevant dutyholders;
• monitoring systems of inspection and information throughout the life cycle of the building to ensure that they are effective, through the new system of regulatory 'gateway points' and safety case submission and review;
• issuing building safety certificates for buildings within scope and determining any conditions attached to them. A building safety certificate is required before a building can be occupied.

Enforcement

The government intends for the building safety regulator to have significant powers, and is therefore proposing a detailed enforcement regime to drive compliance. The following powers will be available where informal reinforcement of required operating standards and guidance fails:

• 'stop notices' preventing construction work;
• improvement notices, requiring remedial action to remedy breaches of building safety law;
• prohibition notices, preventing access to all or parts of a building;
• imposition of conditions, or revocation of the building safety certificate;
• civil sanctions;
• criminal prosecution, with penalties akin to those available under health and safety law.

The government is proposing that the current two year time limit for bringing charges in relation to breaches of the Building Regulations should be extended to either six years, to align with breach of contract claims; or 10 years, to align with collateral warranties.

We anticipate that the regulator will have powers to prosecute directors and senior managers alongside organisations for offences which have taken place with their consent or connivance, or which are attributable to their neglect. With increasingly hefty fines for regulatory breaches in other areas, and the growing prospect of an immediate custodial sentence for individual offenders, robust systems will be required to provide assurance to senior management that the organisation is complying with its duties.

Competence assurance

One of Dame Hackitt's priorities was improving competence across all of the trades and professions involved in high-rise residential buildings. A new system has been developed by the industry, which the government supports. However, the government has decided that the new regulator should have oversight over competence, rather than the industry.

This will be achieved by:

• establishing a committee comprised of industry bodies, independent experts, building owners and residents to provide cross-discipline peer review, support and challenge functions to drive competence;
• maintaining a register of those competent to undertake the main dutyholder roles in the new regulatory system - principal designer, principal contractor and building safety manager – for buildings in scope of the new regime;
• providing guidance on selecting competent people and directing dutyholders to organisations which approve competent individuals to work on buildings in scope.

The Competence Steering Group, set up in response to the Hackitt Report, has consulted with industry stakeholders and recommended that an overarching competence framework should be developed for relevant professional and trade bodies; with individual disciplines identifying gaps in their existing competence requirements or frameworks against the new benchmark framework standards.

Individual qualifying bodies will be expected to maintain a register of their members that have met the competence standards for working on multi-occupied residential buildings of 18 metres or more. They will also have to be accredited or licensed by a suitable publicly recognised body such as UKAS, the UK's national accreditation body, the Engineering Council or another body, subject to equivalent standards of accreditation.

Mandatory occurrence reporting

The proposals include a new legal responsibility for dutyholders to establish an internal reporting mechanism, and report specific 'occurrences' to the regulator. This will be supported by whistle-blowing protections for employees reporting fire and structural safety concerns.

Reportable occurrences are likely to include substandard construction products; poor construction practices; defects in the structure or fabric of the building; failure of fire protection systems or emergency fire systems; and major damage caused by fire.

Mandatory occurrence reporting will allow the regulator to investigate serious incidents and take early action, similarly to how accidents at work are reported to HSE.

The mandatory occurrence reporting regime will be supported by the expansion of the existing Confidential Reporting on Structural Safety (CROSS) system.

Resident safety concerns

The government aims to put residents at the heart of the new building safety system. For that reason, one part of the remit of the new regulator is to provide a route for escalation of resident safety concerns which have not been resolved by the landlord and building safety manager. Failure to participate in that process, or to comply with the regulator's decision, is likely to lead to a review of the building safety certificate.

Katherine Metcalfe is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law. Pinsent Masons, in partnership with the British Property Federation, will be hosting a free event to analyse what these proposals mean for the commercial real estate industry on 12 July 2019.