Before the night of 14th June 2017, to most people around my age, Grenfell was Joyce Grenfell the comedienne who delivered quirky monologues as a strict school mistress. Now Grenfell means tragedy. The impact of Grenfell has been rippling through the construction industry and the emergency services ever since that night. Recently, we had harrowing testimony from those involved in the design and construction of the refurbishment.
In response to the Grenfell disaster, the Government commissioned an Independent Review into Building Regulations and Fire Safety by Dame Judith Hackitt, which was published on 17 May 2018. The review introduced the notion of a ‘Golden Thread’ of information about structural and fire safety, which is reflected in the Building Safety Bill (the Bill) published on 20 July 2020. It is intended that design and fire safety information will be held digitally in accordance with specified standards and will weave through the various stages of the construction process and into occupation.
The Bill outlines proposes safety measures relating to Higher-Risk Buildings and the regulation of the construction profession. At 300 pages it is a very long read. This article focuses on the main themes.
To oversee and administer the new regimes as set out in the Bill, a national Building Safety Regulator (BSR) will be established and form part of the Health and Safety Executive. The BSR will be responsible for all key regulatory decisions during the design, construction and occupation phases of Higher Risk Buildings and will have powers of enforcement which will include criminal sanctions.
Whilst the Bill does not contain a definition for Higher-Risk Buildings (this will follow in regulations), the Explanatory Notes accompanying the Bill do contain a proposal for the definition, which includes:
‘A building which satisfies the height condition and contains:
a) Two or more dwellings (i.e. house, flat or serviced apartment);
b) Two or more rooms for residential purposes (e.g. supported accommodation),or
c) Student accommodation.
d) The height condition is that:
i) The floor surface of the building’s top storey is 18 metres or more above ground level (ignoring any storey which is a roof-top plant and machinery area or any storey consisting exclusively of plant and machinery rooms); or
ii) the building contains more than 6 storeys (ignoring any storey which is below ground level).
(a) “Room for residential purposes” means a room (other than in a dwelling) which is used by one or more persons to live and sleep but excluding a room in:
(i) A residential care home;
(ii) Secure residential institution (e.g. prison, detention centre);
(iii) Temporary accommodation (e.g. a hotel, hostel, guest house, hospital, hospice)’.
Many buildings will be caught by this definition; it is estimated that approximately 13,000 high rise buildings are currently at risk in the same way as Grenfell Tower.
Duty Holder Regime
The Bill introduces a Duty Holder Regime. During the construction phases this includes five categories of Duty Holder that will reflect those that already exist under the Construction (Design and Management) Regulations 2015 (SI 53/2015), namely: Client, Principal Contractor, Principal Designer, Contractor and Designer. Proposed competency requirements for these roles will be introduced by way of building regulations in due course.
In order to maintain the ‘Golden Thread’ of information, Duty Holders will have ‘mandatory occurrence reporting’ obligations, which require them to report to the BSR any structural or fire safety occurrences which cause risk to life.
Post completion of the works and occupation of the building, the Duty Holder is the ‘Accountable Person’ (AP).
In order to focus minds on fire and structural safety during the design and construction process, the Bill proposes the Gateway Regime, as discussed below.
Gateway One- The first gateway occurs prior to the appointment of the Duty Holders and will be completed by those dealing the planning process. The requirements are to be set out in secondary legislation in due course.
Gateway Two– The second gateway occurs prior to the commencement of construction works. It is at this stage that the Duty Holders (who have now been appointed) are required to provide the BSR with their full design intention. Construction cannot start until permission is obtained from the BSR.
Gateway Three-The final gateway occurs following the completion of the construction but before occupation of the building. The Client will be required to submit various information to the BSR, such as as-built plans. At this point all of the Duty Holders are required to sign a declaration to the BSR that the building complies with building regulations. At this stage, the ‘Golden Thread’ of information must then be passed to the AP, as the Duty Holder during occupation.
Duties during occupation
The duties of the AP during occupation include:
- Ensuring that the building is registered with the BSR and they have a Building Assurance Certificate. The BSR will only issue this certificate if they are satisfied that the AP is meeting their obligations.
- Appointing a Building Safety Manager and informing the BSR of their identity. The responsibilities of the Building Safety Manager will include maintaining the Golden Thread of information by managing the building in accordance with the Safety Case Report (a document that sets out the assessed risks and steps taken to avoid them), ensuring the requirements set out in the Building Assurance Certificate are complied with and cooperating with the managing agents, BSR and any owners/occupiers of the building.
Landlord’s duties during occupation include maintaining appropriate safety measures and recharging to the Residents (defined as someone who lawfully resides the building) the reasonable costs of these measures.
The duties of the Residents during occupation include keeping property in good working order and paying a fair share of the reasonable costs incurred by Landlords.
Architects Registration Board
The Bill also introduces more power for the Architects Registration Board (ARB). Currently, architects are not required to undertake continuing professional development throughout their career, unlike many other regulated professions.
Under the Architects Act 1997 the ARB has the ability remove people from the register if they have not ‘undertaken such recent training’ as to satisfy it. Under the Bill, architects would now be allowed to apply for an extension in which to finish their training before the ARB is able to remove them from the register. The Bill also enables the ARB to publicly display sanctions against an architect, to increase transparency for consumers. The ARB feels this is a positive change as the proposal ‘brings the architects profession in line with best practice.*
The government has said it is for the ARB to determine ‘which practical experience or training should be assessed and how the assessment should take place’, in an explanatory note accompanying the draft Bill.
External Wall and Fire Review
At the end of 2019, the External Wall and Fire Survey (known as EWS1) was launched. Though not mandatory, it was intended to provide reassurance about fire safety in older blocks of flats, but it has caused significant issues for some leasehold homeowners.
It introduced a process to assess whether 18m and above buildings contain combustible materials such as aluminium and/or plastic cladding in their external walls.
However, this process was complicated by subsequent guidance (Building safety advice for building owners, including fire doors) published by the government on 20 January 2020 which stated that ACM PE (aluminium composite material polyethylene) cladding should be removed from buildings of any height. Some lenders reacted to this guidance by requesting an EWS1 certificate in relation to multi-occupancy buildings of any height as a condition of mortgage. Some freeholders are refusing to undertake External Wall and Fire Surveys on the properties, as the EWS1 is not mandatory, leaving homeowners unable to re-mortgage or sell to a purchaser who requires mortgage funding.
More accommodating Landlords have provided timescales in years for completing the surveys; there is a lack of qualified, insured Chartered Fire Engineers. The concerns do not end there, if major defects are found there is the cost of remedy to consider, and sales are prejudiced until repairs are completed.
The government has set up an industry group to design a ‘data-sharing portal’ so that lenders and leaseholders can access required information in a timely way. Development of the portal is well underway, and the portal is expected to be fully functional by mid-November 2020.
It is to be hoped that a determination to prevent further tragedy and seeing the construction industry being publicly questioned over the design and construction of the Grenfell Tower refurbishment will change ways of working. The industry players are showing encouraging signs of working together; October 2020 saw publication of a report prepared by the cross-industry Competence Steering Group for Building a Safer Future entitled ‘Setting the Bar’. It sets out their method for overhauling the entire competency regime.
Grenfell will stay with us all; it does not feel right to write about it without donating to support victims and Davies and Partners Solicitors has donated recently. If you have found this article helpful, please consider making a donation, here.
I will end on a suggestion to lift the mood. Have a listen to one of the Joyce Grenfell monologues.
Thank you to Kerry Dyer (trainee solicitor) and Isaac Cole (solicitor) for their research for this article.
23 October 2020