Nov 25, 2021
The following commentary is based on the draft Building Safety Bill. It is therefore subject to change and provided for information only.
Developments involving higher-risk residential buildings will be subject to a series of new stop-go gateway points and more stringent oversight by a new Building Safety Regulator
The Bill sets out three stop-go gateways through the development process for higher-risk buildings:
Developments that are unable to provide sufficient information in an appropriate format to the new Regulator at any of the new gateways face delays to starting on-site or completion and handover, which could result in significant rectification costs if not managed correctly.
Development teams should ensure systems, processes and expertise is in place from the start of projects to properly prepare the ‘golden thread’ of building information throughout the project to minimise future gateway risks.
The Bill will establish a new Building Safety Regulator to oversee a more stringent regulatory system for higher-risk buildings. The Government has already announced that the new Regulator will be formed as part of the Health and Safety Executive.
The Regulator will have a range of powers to ensure compliance with the new duties in the Bill, such as the ability to prosecute offences and issue compliance and stop notices to developers. Failure to comply with compliance and stop notices will itself be a criminal offence with a maximum penalty of up to two years sentence and an unlimited fine.
The Bill also makes directors and managers within organisations liable to prosecution where their organisation commits an offence with their consent, connivance or through their neglect. Senior leaders must ensure systems and controls are in place to manage these risks and comply with the Bill.
The Bill aims to ensure there is responsibility for fire and structural safety throughout the lifecycle of a building – from design and construction through to occupation.
New dutyholders are set out in the Bill, providing roles to assume the responsibility for fire and structural safety at all times:
During project initiation, the CDM role of Client must ensure that the appointed Principal Designer and Principal Contractor have the necessary skills, experience, competence and capability to deliver the works proposed. Evidence of this selection process will form an initial element of the ‘golden thread’ of building information.
Through design and pre-construction, the CDM role of Principal Designer will have dutyholder responsibility for ensuring fire and structural safety is properly considered and reflected in the design of the building. They will be required to develop the ‘golden thread’ of building information so that it is sufficient to secure planning consent through Gateway One and meet the requirements of the Regulator at ‘deposit of full plans’ through Gateway Two.
Through construction, the CDM role of Principal Contractor will have a dutyholder responsibility for ensuring the building is constructed in accordance with the approved design and that the ‘golden thread’ is maintained with all relevant documentation to evidence that. In addition, all change control must be properly documented to evidence that fire and structural safety has been maintained.
The CDM role of Client also has an ongoing duty throughout the project to ensure all processes and systems for planning, managing and monitoring compliance with all requirements.
Upon completion, the dutyholders have a responsibility to handover the complete ‘golden thread’ of building information, setting out how safety has been managed throughout the design and build to an Accountable Person for the building and the new Regulator.
The Accountable Person is the dutyholder through the occupation phase of a building. They are required to use the ‘golden thread’ of building information to develop a Building Safety Case, which will need to be submitted to the new Regulator before they issue a Building Assurance Certificate. A higher-risk building can only be occupied once a Building Assurance Certificate has been issued by the Regulator.
Throughout occupation, the Accountable Person will also need to appoint a competent Building Safety Manager, who will ensure the building is managed in accordance with the approved Building Safety Case.
Where a project involves work on a higher-risk building (including new build and refurbishment), the Bill removes the choice of developers to appoint a building control body. Instead, the new Building Safety Regulator will serve as the building control body for all of these projects.
Key stages within the building control process, including ‘deposit of full plans’ and ‘completion certificate’ form part of the new gateways introduced by the Bill. These stages will now depend upon the project being able to supply sufficient detail and assurance through the ‘golden thread’ of building information.
It’s not yet clear what level of service, support or day-to-day involvement can be expected from the Regulator acting as the building control body and how this will compare with the service developers are receiving from their preferred Approved Inspector or LABC provider.
To minimise the risk of delays through the new stop-go gateways, development teams may consider using their own building control expertise in an advisory capacity to provide ongoing support on compliance with the building regulations throughout the project and ensure gateway submissions are sufficiently prepared.