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Some concerns related to the disproportionate impact of the Building Safety Bill

Some concerns related to the disproportionate impact of the Building Safety Bill

FIS Statement on the Building Safety Bill

The main impact of the Building Safety Bill centres on who and how the building process will be regulated and who is accountable for what.  It is, for the most part, a huge improvement to the regulatory landscape and will, without question drive a healthier culture centred on improvements in the exchange of information, better design and specification, considered procurement and ensure key details are decided before we are stood on site, scratching heads.  An area of concern is, however, the accompanying changes to the Defective Premises Act and particularly the intent for retrospective application which potentially places a significant and disproportionate burden on contractors and suppliers.

The Building Safety Bill – Headline Changes

The Bill will see the implementation of specific gateway points at design, construction and completion phases to ensure that safety is considered at each and every stage of a building’s construction, and safety risks are considered at the earliest stage of the planning process.

It also focusses on key roles for individuals during the design, build and occupation of a high-rise residential building.  These roles come with clearly defined accountability and responsibility.

Two new regulators are being created through the Bill.  The Building Safety Regulator will be holding individuals to account and taking enforcement action when required.  It also defines the role of the Construction Products Regulator in providing oversight for testing and control of the supply of construction products and sets the ground for the n Building

Other key areas covered by the Bill include:

  • Building Safety Risks defined as fire spread (one flat to another or one floor to another) and structural failure.
  • High Risk Buildings defined as those that are at least 18m in height or have at least 7 storeys and have at least two residential units (a dwelling, flat bedroom in a hall of residence or any other unit of living accommodation)
    • This brings into scope care homes and hospitals meeting the same height threshold during design and construction
    • It also brings into scope buildings owned or occupied by the Crown which meet the scope criteria e.g. Crown Estates, Duchy of Lancaster or Duchy of Cornwall or Government Departments. This is in line with the Fire Safety Order and Health and Safety at Work Act which applies to Crown buildings
  • Draft secondary legislation sets out technical definitions, excludes certain buildings from the regime and, for design and construction purposes, defines the use criteria for a building to be covered.
  • Secondary legislation is also drafted to confirm height will be measured from ground level on the lowest side of the building to the floor surface of the top storey (which does not exclusively contain roof-top machinery or a plant room)
  • New powers for the Secretary of State to use secondary legislation to amend definitions written in the Bill
  • Introduction of a new developer tax a levy on developers ”to ensure that the industry makes a contribution to setting things right”.

Areas of concerns – Retrospective extension of the Defective Premises Act (DPA) 1972

Whilst there are many reasons to applaud the introduction of the Building Safety Bill and the positive impact it is undoubtedly going to have on the construction process going forward, our applause missed a beat when we read and absorbed the impact of section 125 related to the extension of the Defective Premises Act (DPA) 1972.  You may not be familiar with this particular piece of legislation, but it is where the 6 year liability related to claims against defective works is rooted.

The phrase: “Where by virtue of a relevant provision a person becomes entitled to bring an action against any other person, no action may be brought after the expiration of 15 years from the date on which the right of action accrued.” has massive implications for the construction sector moving forwards, but our main concern is when combined the commentary from Robert Jenwick that made it clear that the intention will be for changes to apply retrospectively, allowing claims from 2010.

The wording also indicates that this claims window would be applicable to all “relevant building” effectively extending the scope of the DPA away from new premises to cover all refurbishment and renovation work.

Should this Bill pass through Parliament unamended, clients bringing claims based on workmanship issues from 2010 in “relevant buildings” would have a 15 year window (way beyond existing typical contractual defect liability terms) to bring a claim against the contractor.

Timescales for the Building Safety Bill

The Building Safety Bill is not law yet, it was introduced into Parliament on 30 June 2021 and the process of scrutiny by Commons and Lords is expected to take no less than 9 months at which point Royal Assent will be granted..  The timescales below give insight into when and how the various elements are anticipated to come to bear.

FIS is currently seeking clarification on the changes to the DPA (an initial view has been provided here as part of a SpecFinish article by Michael Woolley, Legal Director of Hill Dickinson LLP.  We remain concerned that the Building Safety Fund and various cladding and remediation and support do not adequately address legacy issues.  The legal requirement for building owners to prove that they have explored alternative ways to meet remediation costs before passing these onto leaseholders means that we are also likely to see surveyors commissioned to find problems, actively seeking to find ways to impose the cost on contractors as an easier route than addressing poor procurement and failings in the regulatory environment.

We will continue our work with the wider construction sector in representing the views of our members on this matter and will be raising these concerns through the Civil Service and relevant Politicians over the coming months.

Building Safety Bill documents

FIS hosted an update and debate on the introduction of the Building Safety Bill in October 2020 – you can access a recording of the event here

View the original announcement of the Building Safety Bill here.

New regulator at heart of building safety overhaul

New regulator at heart of building safety overhaul

The Building Safety Bill will set out a clear pathway for the future on how residential buildings should be constructed and maintained.

The Bill, published on 5 July 2021, will create lasting generational change and set out a clear pathway for the future on how residential buildings should be constructed and maintained. 

The Bill provides a framework for a seizmic overhaul to building safety legislation, giving residents more power to hold builders and developers to account and toughening sanctions against those who threaten their safety.

The new Building Safety Regulator will oversee the new regime and will be responsible for ensuring that any building safety risks in new and existing high rise residential buildings of 18m and above are effectively managed and resolved, taking cost into account.

This will include implementing specific gateway points at design, construction and completion phases to ensure that safety is considered at each and every stage of a building’s construction, and safety risks are considered at the earliest stage of the planning process.

These changes aim to simplify the existing system to ensure high standards are continuously met, with a ‘golden thread’ of information created, stored and updated throughout the building’s lifecycle, establishing clear obligations on owners and enabling swift action to be taken by the regulator, wherever necessary.

Under the proposals, the government is more than doubling the amount of time, from 6 to 15 years, that residents can seek compensation for substandard construction work.

The changes will apply retrospectively. This means that residents of a building completed in 2010 would be able to bring proceedings against the developer until 2025.

These reforms also include new measures which apply to those seeking compensation for refurbishments deemed to make the home unliveable.

New measures in the Building Safety Bill introduced today will:

  • Ensure there are clearly identified people responsible for safety during the design, build and occupation of a high-rise residential building.
  • Establish a Building Safety Regulator to hold to account those who break the rules and are not properly managing building safety risks, including taking enforcement action where needed.
  • Give residents in these buildings more routes to raise concerns about safety, and mechanisms to ensure their concerns will be heard and taken seriously.
  • Extend rights to compensation for substandard workmanship and unacceptable defects.
  • Drive the culture change needed across the industry to enable the design and construction of high-quality, safe homes in the years to come.

Minister for Building and Fire Safety Lord Greenhalgh said: “The comprehensive steps we are taking today will ensure that industry and the regulatory system fully address the concerns raised in the ‘Building a Safer Future’ report by Dame Judith Hackitt.

“Though the overall risk of fire across all buildings remains low, we can’t be complacent – the more robust regime will take a proportionate and risk-based approach to remediation and other safety risks.

“And by increasing our measures of enforcement, we will make sure industry follows the rules – and is held to account when it doesn’t.”

The Bill will include powers to strengthen the regulatory framework for construction products, underpinned by a market surveillance and enforcement regime led nationally by the Office for Product Safety and Standards (OPSS).

The national regulator will be able to remove products from the market that present safety risks and prosecute or use civil penalties against any business that breaks the rules and compromises public safety.

The Bill also contains measures to protect leaseholders by providing a legal requirement for building owners to explore alternative ways to meet remediation costs before passing these onto leaseholders, along with evidence that this has been done.

This builds on the government’s commitment to fully fund the cost of replacing unsafe cladding for all leaseholders in residential buildings 18 metres and over in England, with an unprecedented £5 billion investment in building safety. This is alongside the introduction of a new levy and a tax to ensure that industry pays its fair share towards the costs of cladding remediation.

Developers will also be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to a homebuyer, including through the awarding of compensation. Developers who breach the requirement to belong to the New Homes Ombudsman may receive additional sanctions.

Chair of the Independent Review of Building Regulations and Fire Safety Dame Judith Hackitt said: “I am delighted that we have reached this important milestone for the Building Safety Bill. It is vital that we focus on getting the system right for the future and set new standards for building safety.

“Residents and other stakeholders need to have their confidence in high rise buildings restored and those who undertake such projects must be held to account for delivering safe buildings.”

Building Safety Bill documents

FIS hosted an update and debate on the introduction of the Building Safety Bill in October 2020 – you can access a recording of the event here

View the FIS Statement on the Building Safety Bill changes that highlights a key concern related to changes to the Defective Premises Act – dated 9th July 2021

FIS launches new Sustainability Toolkit as first step in new Sustainability Action Plan

FIS launches new Sustainability Toolkit as first step in new Sustainability Action Plan

FIS has this week launched a new Sustainability Toolkit to help the sector to take a pro-active lead as a supply chain in supporting the UK ambition and meeting legal requirements linked to UK Net Zero carbon commitments, but also to look more broadly at the ethical and environmental aspects of sustainability.

In June 2019, the UK became the first major economy in the world to pass laws to end its contribution to global warming by 2050.   With the The (Conference of the Parties) COP26 Summit taking place in the UK in November 2021, this year has been designated “The UK’s year or Climate Action”.   With Construction accounting for 40% of UK Carbon Consumption, the construction industry is critical to supporting this commitment.  In turn the Finishes and Interiors Sector representing around 11% of UK Construction and decisions and processes associated with the fit-out and finishing of buildings is estimated to account for 40% of energy in a building and hence has a big part to play in realising change.  A recent manifesto published by Perkins & Will sets down a clear strategy to moving to zero carbon and identifies that the built environment is responsible for 40% of the UK’s total carbon footprint and within this fit-out is responsible for 40% of energy in a building.  A key figure to target improvement identified in this report is that 300 tonnes of fit-out material goes to landfill every day.

The Sustainability Toolkit is the first output of a new Sustainability Working Group (which is being developed in partnership with the Supply Chain Sustainability School) has been established within the FIS community to help inform activity and provide a platform to encourage collaboration through the FIS and with wider industry initiatives.  The plan is to use this group of experts to set down a clear action plan for the sector and highlight key strategic relationships that can be developed through the FIS to support transformation.   Initially focus is in 5 core areas:

  • Increasing knowledge and understanding within the supply chain
  • Setting targets and standardisation (including monitoring and measuring impact)
  • Providing an active network and encouraging collaboration
  • Highlighting individuals and approaches that help inspire and inform change
  • Informing design and encouraging better asset management

FIS Chief Executive Iain McIlwee stated:

“Whilst many have not been hit by the full force of the Net Zero tidal wave that seems to be heading our way, it is absolutely dominating discussions around the transformation of construction.  When you step back and look at the principles of sustainability, they sit very closely to everything FIS stands for.  Beyond the obvious environmental considerations, the ingredients of change are value led change, resource efficiency, innovation and harnessing technology, productivity, quality, collaboration and ultimately early engagement and dialogue up and down the supply chain.  We are really grateful to the members who have got stuck in to date and look forward to exploring the full potential of the race to Net Zero and a focus on fairness and inclusivity that will be a key to transforming our supply chain for the better”.

The FIS Sustainability Toolkit is available here

If you are interested in joining the working group or simply seeing the draft action plan email info@thefis.org or call FIS on 0121 707 0077

Next meeting of the FIS Sustainability Working Group is set for 3pm on the 27th May – the meeting will be virtual.  If interested in attending, email info@thefis.org 

Building Safety Bill: implementation to start from 1 August

Building Safety Bill: implementation to start from 1 August

This information is for general background knowledge concerning government’s proposals with Building a Safer Future. Subject to parliamentary scrutiny government proposes to bring the changes into effect from 1 August 2021.

Responding to the announcement FIS Technical Director Joe Cilia stated: “FIS has supported the development of the Building Safety Bill and the Building a Safer Future work that preceded it –we are fully behind these changes, supportive of the approach and encouraged that finally things are progressing to implementation.  As with any change there will be some wrinkles, but it is vital that, as a sector we use this regulatory change to drive the ongoing cultural reform that we know construction needs.  If members have any comments or questions that they want us to consider and feed in or around how these changes are likely to impact their work, don’t hesitate to get in touch”.

Building safety: Planning Gateway One
Following its consultation in June 2019 on proposals for reform of the building safety regulatory system, the government’s response published in April 2020 set out their plans for change. This involved the introduction of three gateway points which relevant developments / buildings must go through. Currently, relevant buildings are those which are 18m or higher or 7 or more storeys, whichever is reached first, and contain two or more dwellings or educational accommodation.

  • Gateway one – Planning

This has to demonstrate that the planning application incorporates thinking on fire safety.

  • Gateway two (Technical design & construction phase)

A building control application will be required, so this gateway provides a hard stop where construction cannot begin until the Building safety Regulator has approved the building control application.

  • Gateway three (Current building control completion / final certificate stage)

Provides a hard stop at which the Building Safety Regulator undertakes final inspections and issues a completion certificate. Prescribed documents and information on the as-built building will be required. Information must be handed over to the person9s) responsible for the building in use.

More information on Gateway one
This has two elements:

  • Requires the developer to submit a fire statement setting out fire safety considerations specific to the development with a relevant application for planning permission for development which involves one or more relevant buildings, and
  • To establish the Health & Safety Executive as a statutory consultee for relevant planning applications.

These requirements will be introduced via secondary legislation.

The fire statement must be submitted on a form published by the Secretary of State – see attachment for a draft fire statement form. (Click here view draft fire statement guidance). The questions to be answered will include information on:

  • The principles, concepts and approach relating to fire safety that have been applied to each building in the development
  • Site layout
  • Emergency vehicle access and water supply for firefighting purposes
  • What, if any, consultation has been undertaken on issues relating to the safety of the development and what account has been taken of this
  • How any policies relating to fire safety in relevant local development documents have been taken into account.

Fire statements will be required to include information on the entire development site as set out on the plan which identifies the land to which the application relates.

How are the fire statements different from the requirements of building regulations or the Fire Safety Order?
The fire safety matters contained in a fire statement are relevant only to the extent they are relevant to land use planning. The level of detail and focus of information should not contain the breadth and depth of information on fire safety which will be submitted at building control application stage. Requirements of the fire statement at planning stage will not duplicate or require compliance with the building regulations or the Fire safety Order and local planning authorities will not be responsible for any building regulation matters or the enforcement of building control requirements.

Change of use applications
Applications for permission for a material change of use of land or buildings will require a fire statement unless the application is for:

  • A material change in use of a relevant building and the material change of use would result in the building no longer being a relevant building
  • A material change in use of land or buildings within the curtilage of a relevant building.

Consultation between local planning authorities and HSE
A local planning authority is required to  consult HSE before granting planning permission for:

  • Developments which will involve or is likely to involve the provision of a relevant building
  • Development of an existing relevant building except where the development consists of a material change in use of a relevant building which would result in a building no longer being a relevant building
  • Development within the curtilage of a relevant building in the case of development consisting of a material change in use of land or building within the curtilage of the building.

A local planning authority must consult HSE on fire safety before granting permission to develop land without compliance with conditions if the authority considers it appropriate to do so.

For more information on Planning gateway one please click here.

Holyrood candidates back regulation of construction industry and development of skills at special CICV Forum hustings

Holyrood candidates back regulation of construction industry and development of skills at special CICV Forum hustings

Regulation of the construction industry is essential for a safer and more productive future, election hopefuls from Scotland’s main political parties told a special digital hustings hosted by the Construction Industry Coronavirus (CICV) Forum

The importance of skills and training in the industry also won unanimous cross-party agreement from panellists during the exclusive event held online this week.

Support for reform of procurement practices and a review of VAT on domestic repairs were other positive talking points – supporting the Forum’s own manifesto suggestions for ways to improve the industry.

The hustings, held via webinar on Tuesday 27 April, featured five candidates currently facing election to the Scottish Parliament:

  • Carole Ford, Scottish Liberal Democrats
  • Monica Lennon, Scottish Labour
  • Laura Moodie, Scottish Greens
  • Alexander Stewart, Scottish Conservative and Unionist
  • Kevin Stewart, SNP.

Answering questions from senior Forum representatives and members of a selected audience, all panellists agreed that regulation was essential for the future of the construction industry.

Kevin Stewart said: “It should be the aim of all of us to drive up standards and safety and build trust in people doing day to day work. Why is a security guard a regulated professional when a plumber is not?

“We need to have real debate about the regulatory issues, and a consensus about moving forward on regulation. The Grenfell Inquiry highlights the need to have occupations regulated to keep people safe and give public confidence in construction work.”

Ms Ford agreed, saying: “Professional regulation’s primary purpose is to protect the public, maintain high standards and protect qualifications and standards in the sector.

“The cowboys are doing no favours to those who are properly qualified, so we are totally committed to all measures which would support consumers and protect standards and professional qualifications, and totally in support of having a well-regulated, well respected construction industry which has the confidence of the public.”

Also in favour of regulation was Ms Lennon, who said: “It is important that qualified tradespeople are recognised for their experience and their competence, meaning the public will have confidence in who is coming into their homes or workplace.

“It makes sense to give people confidence in their work and that they will work safely and have pride in what they do, so we fully support measures to improve regulation and improve public safety.”

Training and apprenticeships ‘vitally important’

The importance of skills, training and apprenticeships in the sector was another topic on which all panellists were in full agreement.

Alexander Stewart said: “Economic growth is the cornerstone for this recovery, and construction plays a vital role in that. Skills and training apprenticeships are vitally important and we fundamentally believe that there should be more funding put into it.

“We want to bring people back and get more new people into the industry and ensure that women have more opportunity to become more involved. We also want economic growth, which will only come about through investment in training and support mechanisms.”

Ms Lennon concurred: “Jobs are at the top and at the heart of our manifesto and our vision for the next five years is a roadmap to recovery that focuses on skills – up-skilling, re-skilling and how we can support local government to take on apprentices and use a talented workforce in Scotland to retro-fit homes to tackle fuel poverty and create new jobs in construction and manufacturing.”

Procurement ‘a bugbear that needs resolved’

Questions on procurement reform had been raised by several Forum members ahead of the husting – and again, all five panellists were firm in their convictions that change is needed.

Ms Moodie said: “We believe public procurement could be a real growth boost for small, local businesses that are socially and environmentally responsible and we are committed to reforming procurement requirements that could fulfil that.

“We want to make sure Scottish businesses capture more of the supply chain opportunities, especially from the rise in the growing renewable industry and I believe there is a lot of room for improvement in terms of accessibility and use of online procurement tools. We would also like to see more support for small businesses so they can compete on a level playing field with bigger companies in terms of bidding for the work.”

Both Mr Stewarts agreed that public sector procurement should focus on “best value and not cost” – a key part of the manifesto released last month by leading Forum member SELECT.

Ms Lennon added: “Procurement is quite simply a bugbear that needs resolved and there are huge opportunities around local engagement and low carbon innovation. SMEs are the lifeblood of our economy and we will reorientate procurement to make sure it works for businesses in Scotland.”

VAT rules ‘a burden on business’

The Forum’s manifesto proposals to mitigate the imposition of VAT on domestic repairs, innovations, and green energy projects, gained the support of all the candidates.

Ms Moodie said it was a “burden on businesses” when they were trying to expand and develop, while Ms Lennon said any changes would unlock plenty of opportunities.

Ms Ford agreed, adding: “The current VAT system is regressive and holding back demand for vital energy efficiency improvements and retrofits.”

Kevin Stewart was also in agreement, adding that VAT was not a devolved matter but that he wanted it reduced or abolished for refurbishment repairs and regeneration projects.

Homes ‘need to be fit for purpose’

Panellists also responded to one audience member’s point that a recent survey revealed that 52 per cent of homes are not wind and watertight, with £3.8bn spent annually on their repair and maintenance.

Ms Ford replied that in the west of Scotland the factoring issue in tenements needs looked at as well as that of owners’ responsibilities, saying: “The Edinburgh solution has its own problems, but owners and the responsibilities of multi-occupancy properties needs reviewed.”

Kevin Stewart spoke of “educating people” about the importance of properties being wind and watertight and the need to be ambitious in helping more, while namesake Alexander added: “Homes need to be fit for purpose and there is a need to invest in the sector.”

Praise for ‘collective expertise’

Finally, there was one more thing all the panellists agreed upon – the excellent work of the CICV Forum.

The unique collective was formed in early March 2020 in response to the urgent COVID-19 threat and now comprises 29 leading construction trade and professional associations.

Alexander Stewart said: “It’s so important that the Forum is at the table as you have boots on the ground and work closely together to get the plans put into place. All the ideas in the CICV Forum manifesto are very good and we would support you in achieving them.”

Ms Ford agreed, saying: “The level of detail in CICV Forum documents is only possible because of your collective expertise. Working together has generated documentation that is a lot better than if carried out by one organisation.”

Kevin Stewart added: “The Forum has been at forefront of promoting working safely and long may it stay at the table with government. In particular I would like to pay tribute to the construction character Campbell who has been used to promote messaging through your clever use of social media.”

Forum actions include lobbying the Scottish Government to influence policy and push for positive action, as well as providing expert advice on important sector issues including commercial, employment, planning, skills, and health and safety.

Hustings ‘a resounding success’

The hustings format was the brainchild of Gordon Nelson, Scotland Director of the Federation of Master Builders, a key member of the Forum.

He said: “From the feedback we have received from the sector, it was clear that the hustings event was a resounding success and generated a wealth of constructive and thought-provoking answers from our panellists.

“It proved also that construction is very much at the heart of Scotland’s recovery, and that all parties are committed to rebuilding together and investing in a safer and fully skilled industry that will benefit the whole nation.”

 

CLC response to the Industry Safety Steering Group

CLC response to the Industry Safety Steering Group

The role of the Industry Safety Steering Group (ISSG) is to report on the progress of the construction industry in delivering culture change to support greater building safety; and to challenge and hold industry to account on behalf of the Secretary of State for the Ministry of Housing, Communities and Local Government.

Andy Mitchell (Co-Chair of the CLC), Graham Watts and Peter Caplehorn (Co-chairs of the CLC Building Safety workstream) attended an ISSG meeting in late 2020 to report on progress of developing the CLC Building Safety workstream.  Following on from this meeting, correspondence has been exchanged between Dame Judith Hackitt and Andy Mitchell.

The letters can be read here: ISSG to CLC – December 2020CLC to ISSG – April 2021