Existing dutyholders under the Construction (Design and Management) Regulations 2015 will have new duties.
These dutyholders are clients, designers, principal designers, contractors and principal contractors. Their new duties will be to:
their activities in relation to building regulations.
The dutyholders will keep their existing duties, including:
Part 4 of the Building Safety Act identifies new dutyholders – who will be known as ‘accountable persons’ (APs) – for residential high-rise buildings (HRBs). This will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies.
The AP will usually be an organisation or business but could also be an individual.
The AP will have a duty to take all reasonable steps to:
If a building has more than one AP, the AP responsible for the structure and exterior of the building will be the principal accountable person (PAP). When buildings have a single AP, that entity or person is the PAP.
Existing dutyholders under the Construction (Design and Management) Regulations 2015 will have new duties.
These dutyholders are clients, designers, principal designers, contractors and principal contractors.
Gather information about how your building was built (including the design intent – why it was built the way it was). Include any changes that have been made since it was first built, and the measures in place to control building safety risks.
Every building is different so you may need other items of information that aren’t on this list. Some information will be obvious or easy to find, but you may have to investigate your building, or ask other people or organisations for help.
Some examples of things you’ll need to know about your building are:
In the wake of the Grenfell tragedy, Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, published in May 2018, found that the regulatory system for high-rise and complex buildings was not fit for purpose. Overall, 53 recommendations were made for government and industry to drive the cultural change and right behaviours necessary to improve building safety. Government has committed to implementing these recommendations.
We are now introducing a robust package of legislative changes, to ensure that the problems identified with the current building and fire safety regimes are rectified. This includes the measures in the Building Safety Bill, and additional changes to fire safety legislation following the Fire Safety Act 2021.
The risk to the public from fire is low and has decreased over recent years, but the tragedy of the Grenfell Tower Fire made clear that the current regime leaves too much space for poor practice, poor culture, poor accountability and poor management to take root. We are therefore taking steps to ensure that industry and the regulatory system address the concerns raised by Dame Judith Hackitt in her Independent Review.
The Bill creates powers to introduce new design and construction requirements that apply to high-rise residential buildings, hospitals, and care homes of at least 18 metres or at least 7 storeys to ensure that that building safety is well considered and that standards are maintained during construction to deliver high-quality homes and buildings. Additionally, the Bill will introduce new occupation requirements for existing and new high-rise residential buildings of 18 metres and above (or at least 7 storeys), including a new ‘safety case’ regime which will inform a proportionate, risk-based approach to the management and mitigation of building safety risks that could lead to major incidents. This process will be overseen by the Building Safety Regulator and a multi-disciplinary team of regulatory experts.
The Building Safety Regulator will also have a duty to oversee the safety and performance of all buildings, by gathering intelligence to inform better risk management across the built environment. It will work with industry to promote the competence and organisational capability of building control professionals, and persons in the built environment industry.
The Building Safety Bill will create powers to strengthen the regulation of construction products, ensuring that all construction products are covered by the regulatory regime, and paving the way for the a national regulator for construction products operating through the Office for Product Safety and Standards to have enhanced regulatory powers.
The Building Safety Bill, together with housing, construction product and fire safety legislation will deliver a stronger regulatory system, to ensure that the nation’s homes and buildings are safe.
The Bill is a crucial part of the government’s reform programme.
Establish a Building Safety Regulator within the Health and Safety Executive;
Define the scope of the new more stringent regulatory regime;
Amend the Building Act 1984 to create powers to set out the new design and construction regulatory regime;
Put in place requirements for registering building inspectors and building control approvers;
Increase the powers of the Architects Registration Board to monitor the competence of architects;
Require those accountable for high-rise residential buildings to actively manage building safety risks, appoint a building safety manager and fulfil the regulatory requirements of registering their building and applying for a building assessment certificate;
Include provision to require a New Homes Ombudsman scheme to be established and create a power to require developers to belong to such redress scheme when it is established;
Introduce new powers to allow for enhanced and strengthened regulation of construction products and paves the way for a new national regulator for construction products;
Give residents a stronger voice in the system, including more powers and options to raise concerns about safety and establishing additional obligations on landlords to find alternative financing for remediation works in order to lower the costs passed to leaseholders;
Provide for a levy on the development of high-rise buildings that are at least 18 metres in height or have at least 7 storeys, unless exempted, to ensure the industry makes a contribution to fixing historical building safety defects; and
Strengthen fire safety requirements for all premises regulated by the Fire Safety Order.
At the heart of the Government’s reforms is the creation of the Building Safety Regulator in England. The regulator will have 3 main functions:
Overseeing the safety and performance system for all buildings. This will include advising Ministers on changes to building regulations, using data and research to identify emerging risks and managing the performance of building control bodies who inspect building work;
Assisting and encouraging the improvement of competence in the built environment industry and amongst building control professionals; and
Leading implementation of the new, more stringent regulatory regime for higher-risk buildings.
The Building Safety Regulator will have a range of effective enforcement powers in relation to high-rise residential buildings and, in exercising these, will work closely with existing regulators in local authorities and fire and rescue authorities through a multi-disciplinary team approach. The Building Safety Regulator will exercise its powers in line with regulatory best practice, taking a consistent and proportionate approach, and targeting its enforcement activity at cases where action is needed.
To assist in carrying out its functions, the Bill gives the Building Safety Regulator the power to establish and maintain committees to advise on building functions. The Bill gives the Building Safety Regulator a duty to establish and maintain 3 specific committees. These are:
Residents’ Panel: The purpose of the panel is to ensure that residents have a voice in the work of the Building Safety Regulator and are consulted on resident engagement, how residents escalate safety concerns to the regulator, the regulator’s strategic plan, and other matters that directly impact them.
Industry Competence Committee: This will monitor industry competence and facilitate its improvement, publish guidance on industry competence and advice to the Building Safety Regulator and industry on competence.
Building Advisory Committee: The Committee will help the Building Safety Regulator meet its duty to keep the safety and standard of all buildings under review by providing advice and expertise and helping in the development of future building regulations.
Commencement: The Building Safety Regulator is already working in shadow form and is expected to be operating at scale within 12 to 18 months of the Bill receiving Royal Assent. Within 6 to 12 months of Royal Assent, the Building Safety Regulator intends to launch the Residents’ Panel. The Building Safety Regulator will then consult the Residents’ Panel and other interested parties on its draft strategic plan, which will be published at the earliest opportunity. An interim Industry Competence Committee has been established. The Building Safety Regulator intends to launch the Industry Competence Committee and Building Advisory Committee within 12 to 18 months of Royal Assent.
The new regime introduced by the Bill will introduce a number of regulatory measures for buildings that are at least 18 metres in height or have at least 7 storeys and have at least two residential units. These will also apply to care homes and hospitals meeting the same height threshold during design and construction (not during occupation). This includes:
Dutyholders having clear accountability and statutory responsibilities as buildings are designed, constructed and refurbished;
Gateways (stop/go decision points) which will provide rigorous assessment of regulatory requirements to ensure building safety and regulatory compliance is considered at each stage of a building’s design and construction;
The requirement for a golden thread of building information – created, stored and updated throughout the building’s lifecycle;
Mandatory reporting to the new Building Safety Regulator of prescribed fire and structural safety occurrences;
Building Safety Regulator oversight of building work as the building control body for high-rise residential and other in scope buildings. This will strengthen regulatory oversight and require dutyholders to implement appropriate measures to manage building regulations compliance; and
An ongoing duty on the Accountable Person for each high-rise residential building to assess the building safety risk relating to the parts of the building for which they are responsible, and take all reasonable steps to prevent a building safety risk materialising, and limit any consequences to the safety of people in or around the building.
Commencement: The new regulatory regime for high-rise residential and other in scope buildings is intended to come into force within 12 to 18 months after Royal Assent.
Those involved in the commissioning, design, construction, or refurbishment of high-rise residential and other in scope buildings will in future have new formal responsibilities to comply with building regulations.
Their duties will include:
Where the Construction (Design and Management) Regulations 2015 (CDM) apply to the building work, dutyholders may be certified as also appointed under the building regulations and will have relevant duties. The Government also expects to make changes to the building regulations for buildings which are not in scope, for example to introduce the new dutyholder and competence structure; improve the regulations which govern building control procedures; and reform the regulations under which local authorities can charge for their building control functions.
Commencement: The new responsibilities for dutyholders are intended to come into force within 12 to 18 months of the Bill receiving Royal Assent. In addition, by Spring 2022, the British Standards Institution (BSI) will publish standards covering the competence requirements for the Principal Designer and Principal Contractor to help dutyholders build the necessary skills, knowledge, experience and behaviours ahead of the provisions in the Bill coming into force.
The Building Safety Regulator will also deliver a major new set of functions to drive up the competence of the building control profession. This includes establishing and maintaining a register of building inspectors (individuals) and building control approvers (either organisations or individuals), as a means of monitoring the quality of building control professionals and increasing accountability across the building control sector.
Commencement: The registration scheme for building inspectors and building control approvers is intended to launch within 12 to 18 months after Royal Assent. We anticipate that this will include a transition period to allow for individuals currently working in building control to register as building inspectors and current approved inspectors to register as building control approvers.
The Building Safety Regulator will have a duty to keep the safety and standards of buildings under review and will work with relevant parties to address any building safety or performance issues it identifies. It will work with the construction industry and technical experts to improve standards and make recommendations to Government for changes to the building regulations and Approved Documents. It will drive safety and performance improvements that ensure the safety of people in or around buildings.
We are introducing a new framework for the oversight of the performance of building control bodies, levelling the playing field for local authority building control and registered building control approvers. The Building Safety Regulator will be able to set operational standards rules defining the minimum performance standards that building control bodies must meet. The regulator will set reporting requirements to collect information and will continuously assess and analyse the performance of building control bodies, making recommendations to drive up standards across the sector. The Building Safety Regulator will have investigatory powers when building control bodies breach the operating standards, and a series of escalating sanctions and enforcement measures to address poor performance issues. Building control approvers who fail to meet the standards can be deregistered, and the regulator will be able to advise the Secretary of State to make an order to take over the function of a local authority building control department by appointing senior officers or managers from another authority, to manage the failing building control department until it can be returned it to full compliance.
The effectiveness of the whole building regulatory regime will be independently reviewed at least once every 5 years to ensure that it is fit for purpose and to allow recommendations for improvement to be made.
Commencement: These new responsibilities are intended to come into force within 12 to 18 months after Royal Assent. In the intervening period, HSE is working with building control bodies to develop a robust framework of operational standard rules which it will publish for consultation following Royal Assent.
Planning gateway one, the first gateway in the new regime, is being introduced via amendments to secondary planning legislation rather than the Building Safety Bill. It will help ensure that applicants and decision-makers consider fire safety issues relevant to planning such as site layout, water supplies for firefighting purposes and access for fire appliances. This gateway point will bring forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process by requiring a fire statement with relevant applications for planning permission for development which involves one or more relevant buildings. The Health and Safety Executive will be a statutory consultee to provide local planning authorities with fire safety input on proposals.
Commencement: Planning gateway one is due to come into force on 1 August 2021.
Gateway two will replace the building control deposit of plans stage, before building work starts, with the Building Safety Regulator as the building control body for high-rise residential and other in-scope buildings. It will be a stop/go point, building control approval must be obtained from the Building Safety Regulator before relevant building work starts. Applicants will have to demonstrate how the proposals comply with building regulations requirements – including information about how the new dutyholder, competence, golden thread and mandatory occurrence reporting requirements will be met. Requirements should be considered holistically with an outcome focused approach which includes appropriate consideration of building safety. All plans and documents must be realistic for the building in use and not rely on unreasonable assumptions about the occupied building once built. If a developer attempts to start work without Gateway two approval, the Building Safety Regulator will have a range of enforcement powers, including potentially prosecuting the developer.
Commencement: Gateway two is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
During construction (between Gateways two and three) there will be ongoing requirements to assure building regulations compliance. Dutyholder duties must be met, and fire and structural safety occurrences (including near misses) which could cause a significant risk to life safety must be reported in line with mandatory occurrence reporting duties. Statutory change management requirements must be followed, with significant changes requiring building control approval before they can proceed, and robust record-keeping. The golden thread of information will be developed and maintained to hand over to the building owner at Gateway three, accurately reflecting the as-built building.
Gateway three will occur at the current completion/final certificate stage for high-rise residential and other in scope buildings. It will be a stop/go point where an application must be submitted to the Building Safety Regulator with prescribed documents and information reflecting the as-built building. The information must also be handed over to the building owner to help them manage building safety risks when the building is in use by ensuring they have accurate, good quality, up to date information. The Building Safety Regulator must assess whether the building work complies with building regulations, undertake inspections, and issue a completion certificate on approval. Once Gateway three has been passed, the Accountable Person can register the building for occupation.
Commencement: Gateway three is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
The Independent Review recommended a golden thread of information be established for high-rise buildings. This will ensure that the right people have the right information at the right time to ensure buildings are safe, and risks are managed effectively.
The golden thread of information for high-rise residential and other in scope buildings will be developed throughout design and construction, handed over to the building owner on completion and developed over the lifetime of the building by the relevant dutyholders and Accountable Persons.
Commencement: The requirement to create, hold and maintain the golden thread is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
We are introducing a targeted developer levy using powers in the Bill, which will apply only when developers seek building control approval to develop certain high-rise residential and other in scope buildings in England, helping to ensure that the industry takes collective responsibility for historical building safety defects.
Commencement: The industry levy is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
Every occupied building in scope of the new regime will have an Accountable Person. Where there are two or more Accountable Persons for a building, one of them will be assigned as the Principal Accountable Person, with overall responsibility for meeting the statutory duties introduced through the Building Safety Bill for the whole building. The Principal Accountable Person and all other Accountable Persons will be required to work together to deliver building safety to residents.
It will become mandatory for the Accountable Person to register existing occupied high-rise residential buildings with the Building Safety Regulator within a prescribed period, and new high-rise residential buildings will need to be registered before they become occupied. This will allow the Building Safety Regulator to compile the national register of high-rise residential buildings in England, which will be made publicly available.
The Accountable Person for a building will be required to meet a range of duties to ensure resident safety, including conducting an assessment of building safety risks, taking proportionate steps to reduce and manage risks, summarising these in a safety case report for the building, and storing information in the golden thread. The Accountable Person will also need to establish a residents’ engagement strategy and complaints procedure (see more information below).
The Accountable Person must also appoint a competent, named Building Safety Manager to assist in the management and oversight of all systems and processes for meeting those obligations (with the exception of where the Accountable Person has notified the Building Safety Regulator that they have the capability and will fulfil the functions of the role themselves), and must have confidence in the Building Safety Manager’s competence to fulfil that role.
The Accountable Person will need to apply for a Building Assessment Certificate, to verify that they are meeting their prescribed duties. After the building is registered, the Building Safety Regulator will issue a call-in notification to the Accountable Person, directing them to apply for the Building Assessment Certificate, which they must do within 28 days. To secure their certificate, the Accountable Person will submit the safety case report and other prescribed information to the regulator to satisfy them that they are meeting their duties. The circumstances under which an Accountable Person can expect to be called for certification will be set out in the Building Safety Regulator’s strategic plan.
Accountable Persons (under the Bill) and Responsible Persons (under the Regulatory Reform (Fire Safety) Order 2005) will be required to cooperate with one another when fulfilling their duties to deliver a holistic approach to the management of building and fire safety risks in their building. The cooperation duty will provide a strong, effective link between the building safety and fire safety regimes to ensure greater protection of residents. The Bill makes provision for the Accountable Person to recover the costs in meeting their enhanced obligations under the new regime. These provisions (the Building Safety Charge) will be commenced prior to the occupation duties as set out above.
Commencement: The obligations on the Accountable Person are intended to come into force within 12 to 18 months of the Bill receiving Royal Assent. The Building Safety Regulator’s Strategic Plan will outline when existing occupied buildings will be called to apply for their Building Assessment Certificate. To help dutyholders build the necessary skills, knowledge, experience and behaviours ahead of the provisions in the Bill coming into force, the British Standards Institution (BSI) will publish standards by Spring 2022 covering the competence requirements for the Building Safety Manager.
A fundamental finding of the Independent Review was that residents’ views and concerns must never be ignored by those responsible for managing the safety of their building. The Accountable Person in a high-rise residential building will in future have duties to:
In future, residents will also be able to escalate their safety concerns to the Building Safety Regulator, who will establish and operate a complaints procedure to handle residents’ concerns.
Alongside this, residents will have clear legal obligations to comply with a reasonable request made by the Accountable Persons for information in connection with fulfilling one or more of their duties to assess safety risks in the building to avoid actions that could pose a significant risk to the fire and structural safety of the building, and to refrain from interfering with safety items in and around the building.
Where a resident fails to comply with their responsibilities, the Accountable Person may issue a contravention notice requesting that the resident remedies the contravention within a reasonable time. As a last resort, an Accountable Person will be able to go to the civil courts to enforce those responsibilities.
Commencement: These new duties are intended to come into force within12 to 18 months of the Bill receiving Royal Assent.
Dame Judith Hackitt found that those responsible for the safety of buildings were not sufficiently deterred from failing to comply with their responsibilities due to a lack of enforcement action, and penalties being too low to act as a deterrent.
In addition to the financial and reputational risks of not passing through the gateways or not receiving a Building Assessment Certificate we are:
The Building Safety Regulator will be able to appoint ‘authorised officers’ to exercise investigatory powers on its behalf, and obstructing or impersonating such an officer will be an offence, as will be failing to provide information when required or providing false or misleading information.
The Building Safety Regulator will exercise its powers in line with regulatory best practice, taking a consistent and proportionate approach and targeting its enforcement activity at cases where action is needed.
Commencement: These new enforcement powers are intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
The Building Safety Bill does not make leaseholders liable for the cost of undertaking capital works, for example removing unsafe cladding. However, where existing leases allow for these remediation costs to be passed on, the Building Safety Bill will bring forward measures to protect leaseholders, by placing additional duties on the building owner to explore alternative cost recovery routes before passing costs to leaseholders. The Bill will also introduce the Building Safety Charge, which will only cover the ongoing costs of implementing the new building safety regime. This will give leaseholders assurance, and provide transparency and protection in relation to ongoing building safety costs. By providing this transparency, it is expected that leaseholders will be able to hold their Accountable Person to account for providing safety to their building in the most effective and efficient way.
Commencement: The Building Safety Charge is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
The Bill will amend the Limitation Act 1980 to extend the period in which a claimant can bring a claim under section 1 of the Defective Premises Act 1972. Currently, under the Defective Premises Act 1972 claimants can seek compensation in respect of the work to construct a dwelling, if the dwelling is unfit for habitation, within 6 years of the work taking place. The Government thinks that it is right to extend that period from 6 to 15 years, to afford leaseholders and other claimants more time to bring proceedings. The measures will apply retrospectively, and the amendment will make provision to ensure that all parties have access to a fair trial.
Currently the Defective Premises Act 1972 only applies to the ‘provision’ of a dwelling. We will also be extending the cause of action under the Defective Premises Act 1972 to include refurbishment works. This change will also be subject to the extended 15-year limitation period. This change will only apply prospectively.
Additionally, we will be commencing section 38 of the Building Act 1984. This provision will also be subject to the extended 15-year limitation period and will apply prospectively only.
Commencement: The expansion of the Defective Premises Act 1972 to include refurbishments and extension to the limitation period for the existing duty will come into force two months after the Bill receives Royal Assent; we intend to commence section 38 of the Building Act 1984 at the same time.
The Bill will introduce provision for a redress scheme to be known as the New Homes Ombudsman in order to resolve disputes concerning new build homes and provide an effective means of redress should problems arise with them.
The government will make arrangements to ensure that the New Homes Ombudsman is in place and make regulations requiring developers of new build homes to belong to the scheme. The Secretary of State will have the power to approve an existing, or create a new, Code of Practice, which will set high standards of build and service quality provided by developers and give homebuyers the information they need so they know what to expect. The New Homes Ombudsman will take into account the code of practice when investigating and determining complaints against developers.
Commencement: The New Homes Ombudsman is intended to come into force within 12 to 18 months of the Bill receiving Royal Assent.
The Bill will create powers to strengthen the regulation of construction products to ensure that all products are covered by a regulatory regime.
Regulations made under these powers will introduce a new requirement for construction products to be safe, in line with the existing approach for consumer products.
We will also create new requirements for products that are ‘safety critical’, where their failure could cause death or serious injury to people. Manufacturers of these products will be required to declare their performance, put in place factory production controls to ensure that products consistently perform in line with this declaration and to correct, withdraw and recall products that don’t comply with this or that present a risk. The Secretary of State will take advice from stakeholders across the construction products industry, OPSS, the Building Safety Regulator, Fire and Rescue Authorities and wider stakeholders on which products should be considered to be safety-critical.
The national regulator for construction products, which is being established within the Office for Product Safety and Standards (OPSS) will operate the new robust powers of enforcement in addition to Trading Standards OPSS is an experienced regulator and will use the time before new powers for regulating construction products are granted under the Building Safety Bill to develop capacity to delivery the new national regulator for construction products and provide support to existing regulators while operating within the scope of the current regulatory regime.
Once legislation is in place, OPSS will:
The national regulator for construction products will continue to work with the industry to help them prepare to comply with the regulatory changes, focusing on the introduction of the general safety requirement, which will require many manufacturers to consider the risks posed by their products for the first time.
Commencement: Additional regulatory powers for the enforcement of the existing regime will come into force within 6 to 12 months of Royal Assent. We intend that the new requirements for construction products included on the safety critical list, the requirement for construction products to be safe, and powers the national regulator for construction products will use to enforce the extended regime are expected to come into force within 12 to 18 months of Royal Assent. We will consult with industry and other stakeholders on timings of the new requirement.
The Building Safety Bill will introduce a number of measures to strengthen the Regulatory Reform (Fire Safety) Order 2005. We will increase the level of fines for 3 specific offences and ensure that a Responsible Person’s failure to follow statutory guidance can be used as evidence of breach of the Fire Safety Order.
The other amendments place new requirements on Responsible Persons, including duties to record relevant fire safety information. These new requirements will facilitate the identification of Responsible Persons and those appointed by Responsible Persons to carry out fire risk assessments, encourage Responsible Persons to cooperate and coordinate with one another, preserve essential fire safety information over a building’s lifetime, and work towards ensuring that a consistent approach is taken to fire safety by improving the quality of fire risk assessments and supporting enforcement action.
In all multi-occupied residential buildings, Responsible Persons for the common parts will also be required to provide residents with specific fire safety information that is comprehensible and relevant to them. In high-rise residential buildings where the Fire Safety Order and building safety regime will overlap, the cooperation duty placed on Responsible Persons will apply in respect of Accountable Persons to support a whole-system approach to safety in their building.
To further ensure the quality of fire risk assessments, a requirement will be placed on the Responsible Person to ensure any person they engage to undertake all, or any part of the fire risk assessment is competent. Commencement: These changes to the Fire Safety Order are intended to come into force within 6 to 12 months of the Bill receiving Royal Assent.
The Building Safety Bill will strengthen the powers that the Architects Registration Board has to measure and assess competence and increase transparency to members of the public procuring architectural services. Commencement: These changes to the Architects Act 1997 are intended to come into force within 6 to 12 months of the Bill receiving Royal Assent.
The Bill includes provisions that enable social housing complainants to escalate a complaint directly to the Housing Ombudsman service, once they have completed their landlord’s complaints process, thereby increasing the speed of redress. This is achieved by removing the existing requirement (‘the democratic filter’) for social housing residents wishing to escalate their complaint to the Housing Ombudsman to do this via a `designated person’ that is, an MP, Councillor or recognised tenant panel or wait 8 weeks after the end of their landlords’ complaints process.
Commencement: The removal of the Democratic Filter is expected come into force within 6 months of the Bill receiving Royal Assent.