A new Building Safety Regulator (the BSR) will be established to ensure that those involved in the building and management of all residential buildings, regardless of size, have the requisite competence to fulfil their role by assigning them specific duties (e.g. Client, Principal Designer, Principal Contractor etc.) and will have the power to punish those who are not up to scratch.
The BSR will also have the power to control materials and construction products marketed in the UK, withdrawing those they believe are not up to standard and placing the onus on manufacturers to ensure that the products they supply are safe.
Specific to Higher Risk Buildings (currently defined to be 18 metres or higher, or six storeys or higher) whichever threshold is reached first) is the concept of the three gateways, strategically placed at key points of the construction cycle: the design stage, the construction stage, and the management stage (at post-completion handover). In short, you will not be able to progress from one gateway to another without providing evidence to the BSR that you have met the requisite standards of the previous gateway. It is worth noting that residential care homes, hotels and prisons are currently excluded from this higher risk category but that isn’t to say they won’t be included in later revisions of the draft Bill.
The first gateway (the design stage) will focus on working with stakeholders to assess matters such as fire safety, access for emergency fire vehicles and adequate water supply, before planning is granted.
The second gateway (the construction stage) relates to the construction process and shall require the Client to submit information to the BSR that demonstrates that they have complied with building regulations relating to the construction of the building and to confirm that they are satisfied that the ‘Principal Designer' and the ‘Principal Contractor' can and have discharged their responsibilities effectively.
The final gateway (the management stage) will require the Client to submit to the BSR, the ‘as built’ building information, including updated plans, and an updated fire and emergency file relating to anything safety related.
The Bill provides for the appointment of an accountable person (AP) - the individual legally responsible for building safety as a whole. The AP has to be appointed before occupation and will be responsible for registering a Higher Risk building and applying for a Building Assurance Certificate. As the AP is most likely to be either the freeholder, long leaseholder or even a management company with multiple assets, the Bill has acknowledged that a Building Safety Manager (an individual or organization) is required to assist on a building-by-building basis.
The AP will be responsible for developing a resident engagement strategy prior to the property becoming available for occupation. The Bill makes clear that this should be a cooperative regime, with the AP developing an annual building safety report in consultation with the residents, who will have influence over both decision-making and policy-making.
On the topic of charging and fees, the Bill will also introduce into every long lease (21 years or more) a requirement for leaseholders to pay towards the costs of building safety work that might be required. It also proposes an amendment to the Landlord and Tenant Act 1985 whereby the landlord and leaseholders agree on repair works, who will carry them out and how to split the cost.
The Bill also introduces a new building safety charge, allowing the AP to charge a separate building safety fee to pass on costs associated with drafting the building safety report, employing a Building Safety Manager or compliance linked to satisfying the BSR, to leaseholders. Although the AP cannot demand this new charge in intervals of less than three months, lease clauses regarding payment within 28 days may be compulsory under the new legislation.
The sluggishness of the Parliamentary law making process, along with the scrutiny of the relevant select committee, means it is unlikely that we will see legislation reach the light of day before the end of 2021.
This article expands on topics covered in our recent social housing webinar. This can be watched in full on Birketts’ YouTube page.
If you would like to discuss any of the matters covered above in further detail, please contact Jonathan Hulley or Jonathan Parker or another member of the Social Housing team.
Birketts’ upcoming webinars can be found on our Events pages.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.