COMMENT: Four years have passed since the Grenfell Tower fire and we now have the Building Safety Bill – a significant and ambitious piece of legislation presented to parliament and published on 5 July 2021. The bill seeks to secure a comprehensive regulatory reform of the built environment sector, following Dame Judith Hackitt’s recommendations in the Building a Safer Future review.
The government has set out an ambitious timetable to implement the bill. Most obligations are envisaged to be implemented within 12-18 months of the bill receiving royal assent – around October 2023. This means that everyone in the sector must get up to speed with the legislation. Landlords in particular have just over two years to appoint building safety managers, prepare safety cases for their higher-risk buildings, and achieve a building assessment certificate for each occupied building.
Improving industry competency
Is this achievable? The British Standards Institution is currently working up competency requirements for building safety managers and other dutyholders, to be published in spring 2022. However, anecdotal evidence suggests that it will take up to five years to train the required number of building safety managers. What do landlords do in the meantime? What happens to those residents living in buildings without a building assessment certificate by the deadline?
The Building a Safer Future review envisaged a nimble and active building safety regulator that will set up and consult with stakeholder committees, make recommendations on a variety of building safety issues, act as building control for higher-risk buildings and set up a mandatory occurrence reporting system. The regulator will have responsibility for all buildings, not just higher-risk sites, and its effectiveness in all areas of its responsibility will determine the success or otherwise of the new regime. The new regulator already exists in shadow form, sitting within the Health & Safety Executive, but it remains to be seen if it will adopt this proactive approach. To help landlords navigate the new regime, the regulator will need to provide clear guidance on how to compile a safety case and how much detail will be required to achieve a building assessment certificate.
Another determinant of success will be the culture change that is needed in the building sector for real and lasting improvements to be secured. The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations, published in draft with the bill, set out clear competency obligations on dutyholders during the design and construction phase.
Designers, contractors, principal contractors and principal designers are required to possess the requisite skills, knowledge, experience and behaviours (or the organisational capability, if the appointment is of a company) to perform their roles. Designers and contractors must not start any work unless satisfied the client is aware of its own duties under the regulations – the only acknowledgment in the legislation of the need for the client to be competent. As the client is meant to be the guiding mind and key decision-maker in the lifecycle of higher-risk buildings, it is surprising that the new regime does not focus more on the client’s skills, knowledge, experience and behaviours.
Paying for remediation costs
One of the key developments since the draft bill was published last year is around the issue of who pays for historic remedial works. The Housing, Communities and Local Government Select Committee recommended that the government fund all historical building safety remediation works and that no costs should be imposed on leaseholders. The bill does not quite fulfil this recommendation. Instead, the government’s funding extends only to the removal of cladding on higher-risk buildings, rather than defects caused through poor workmanship that leaves buildings in a similarly dangerous condition. The bill’s legal solution is to amend the Defective Premises Act 1972, allowing parties to sue under the Act with a retrospective period of 15 years. Leaseholders will only be expected to pay for historical building safety remediation works if the landlord has first pursued grant funding, insurance, guarantees and/or claims against third parties.
These potential solutions seem at odds with the overall aim to improve the sector’s culture. Both the amendment of the 1972 Act and the requirement on landlords to prove they have pursued third parties before they seek to recover costs from service charge payers will lead to more disputes, claims and adversarial behaviour. Although these measures are necessary to protect the public purse, it will be difficult to change the culture of the sector and encourage collaborative behaviours, while tearing strips off each other in order to work out who pays. These two measures could be diverting and detrimental and, by themselves, undermine the long-term effect of the bill while increasing costs for leaseholders. Is this what we want for the sector?
What happens next?
There is so much to say about the bill and its accompanying information. The sheer breadth and scale of the new regulatory regime means that the next two years will be marked out by a stream of guidance, secondary legislation and commentary. We need to keep on top of it all and ensure that we all play a part in the successful and timely implementation of the new regime.
Rebecca Rees is a partner and head of procurement at Trowers & Hamlins
