02 October 2023
by

Introduction

The enactment of the Building Safety Act 2022 (BSA) is one of the most fundamental changes to construction in decades. Much has been written about the Act and the detail of how it will operate in the future. This article is an overview of the Act and its secondary legislation for specifiers and building product manufacturers. More detail on this follows in my second article that will look at the ‘gateways’, the ‘golden thread’ and the ‘change control process’.

The construction industry can be characterized as being highly fragmented and operating at extremely low margins. This has created an industry focused on cost management and cost-cutting. The Building Safety Act seeks to improve the processes that were seen to be fundamentally broken as a result of the Grenfell tragedy. Amongst many changes, it introduces a new building safety regime and regulator (Building Safety Regulator), as well as introducing a regulator for construction products (National Construction Products Regulator). As well as the Building Safety Act, there is also a raft of secondary legislation and associated guidance and standards.

In order to drive a ‘safety-led’ process, and in a similar way to the Construction (Design and Management) Regulations 2015 (CDM) before it, the Act introduces the concept of ‘duty holders’, who have specific roles to play during the design, construction and operation of the building, as well as a requirement that the duty holders be competent to carry out the functions required. It also includes new ‘gateways’, though which the duty holders must demonstrate safety and compliance with the regulations, as well as a new ‘change control process’, which is possibly the most important element of the new process change. All of this comes with a new fee structure (Building Safety Regulator charging scheme 1 October 2023) and timescales, some of which are new and will add to delivery periods.

It should also be noted that the new regime applies to ALL buildings (not just those that are ‘higher-risk buildings’ (HRBs)), although the more stringent rules only apply to HRBs. This has implications for how all projects are initiated, designed and constructed, as well as the roles of all those involved.

Background to the new regime

The UK Building Safety Act emerged as a response to the tragic Grenfell Tower fire in London in 2017, which claimed 72 lives and exposed systemic safety flaws. This disaster revealed widespread issues with high-rise residential building construction, including inadequate fire safety measures and insufficient oversight. In the aftermath, public outrage and a demand for action led to a comprehensive review of building regulations and safety practices. Dame Judith Hackitt’s Building a Safer Future report highlighted the need for a significant overhaul of the regulatory framework. This included changes to processes, regulation, products, competencies and information management. Subsequently, the UK Government introduced the Building Safety Act to address these deficiencies and to ensure safer buildings for all residents.

Which buildings are in the scope of the Building Safety Act?

At its simplest level, the new regime applies to ALL buildings, not just those that are deemed to be higher-risk. This is because the new regime aims to improve building safety and compliance across the industry.

A stricter regime exists for buildings deemed to be higher-risk (Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (Regulation 2)). These buildings (both existing and in design and construction) are those at least 18 m high or with seven storeys that include at least two residential units (except in Wales, where this is just one unit). The regulations exclude any building that is composed entirely of secure residential institutions, hotels or some military buildings. The regulations cover care homes and hospitals during design and construction but not during operation.

The regulations apply to existing buildings in scope and, as such, around 12,000 existing buildings should already have been registered with the regulator. It should also be noted that provisions exist to extend the scope of buildings included within the scope of the Act at some point in the future.

Who are the new ‘duty holders’?

The Act introduces the concept of duty holders, i.e. those people or organizations that must fulfil a defined role. These new duty holders (defined in The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023) will initially seem recognizable to those conversant with the CDM Regulations. However, the BSA extends the responsibilities of current duty holders and adds new roles – ‘accountable person’ (AP) and ‘principal accountable person’ (PAP).

A clear aim of the roles is to foster teamworking and collaboration – all of the duty holders are required to work together, cooperate and share information. The core duty holders, and their main responsibilities, are as follows:

  • Client - The client is responsible for appointing the key roles, ensuring that adequate resources, systems and timescales are in place and for maintaining the ‘golden thread’.
  • Principal designer - The principal designer should take all reasonable steps to ensure that the design work carried out by them (or by anyone under their control) is planned, managed and monitored so that the design is such that, if built, it would comply with all relevant requirements of the Building Regulations.
  • Principal contractor - The core responsibility of the principal contractor is to plan, manage and monitor the design work during the building work and to ensure that the work complies with all relevant requirements of the Building Regulations.
  • Accountable person (AP) - (and principal accountable person (PAP)) - The AP (or PAP if more than one AP is involved) is responsible for maintaining the building, safety information (and the building safety case) and liaising with residents and the regulator.

As well as having defined roles and responsibilities, the duty holders must demonstrate that they are competent to fulfil the role. Competencies for the various duty holders have been defined in a series of ‘open’ British Standards (PAS 8672:2022).

In domestic buildings, it has been decided that the client is unlikely to have sufficient competence to be the ‘client’ duty holder. In this case, the principal designer will likely have additional duties. More detail on the roles and responsibilities as well as other roles can be found here.

The gateways

The UK Building Safety Act introduces three key gateways that are crucial for ensuring the safety and compliance of higher-risk buildings. These gateways are:

  • Gateway one – planning. This is the initial gateway and occurs during the planning phase of a higher-risk building. It involves scrutiny of the proposed design and safety measures to ensure that they meet the required standards. This gateway has been in place since August 2021.
  • Gateway two – before construction. Applying to all buildings, gateway two takes place before construction begins. It involves a detailed review of the construction plans, materials and safety measures. Once gateway two approval is obtained, construction can proceed.
  • Gateway three – before occupation. This new gateway occurs before the building can be occupied. It ensures that all safety and compliance standards have been met throughout the construction and inspection process.

No work can commence without approval and, fundamentally, should any major change in design or construction take place, then further approval will be required – see ‘The ‘golden thread’’ and ‘The change management process’ below. This has some potentially significant impacts on some procurement routes (such as design and build) and on the role of specialist subcontractors who might produce large elements of the system design.

These gateways are designed to ensure that higher-risk buildings meet stringent safety requirements at every stage of their development and life cycle, reducing the risk of safety issues emerging after occupation. The gateways each have a statutory review period. The gateway two review period for HRBs is 12 weeks (or eight weeks for work to an existing HRB). A key new area is the introduction of gateway three. This is the regulatory review period of the ‘as built’ information, and includes both an additional fee and an eight-week time period. Whilst the Health and Safety Executive (HSE) will be responsible for safety of all buildings, it will only perform the regulatory function for HRBs. Other buildings will remain under Local Authority Building Control or any private organization that is registered as a building control approver, although the HSE has new responsibilities for ensuring the competence of all Building Control Officers.

Further government guidance on occupation can be found here.

The ‘golden thread’

A key feature of the revised regime is the introduction of the ‘golden thread’ of information. This ‘golden thread’ is designed to be the core record-keeping process for the design, construction and operation of the building. The BRAC golden thread report defines the ‘golden thread’ as follows:

‘The golden thread is both the information that allows you to understand a building and the steps needed to keep both the building and people safe, now and in the future.’ The Act and its secondary legislation (The Higher-Risk Buildings (Key Building Information etc.) Regulations 2023) requires duty holders and accountable persons to gather and provide the information to the regulator. However, the legislation does not prescribe the format, only that ‘[t]he key building information to be provided to the regulator must be in electronic form’ and that this information must be submitted within 28 days of applying for registration.

This is hugely disappointing, given that the industry has developed its Building Information Modelling standards (the ISO 19650 suite and associated guidance) to a relatively mature level. The lack of prescription and standardization will result in the regulator receiving information in multiple formats, in design teams needing to take time to agree formats and in clients requiring different systems to provide this information to building users.

The change control process

Gateway two is the point at which the technical design of the building is approved by the new regulator. Should the principal designer and/or the principal contractor seek to make changes to the approved scheme, then a new change control process must be adopted.

Where changes are required, then the duty holders must assess whether the changes are minor or whether they represent a ‘notifiable’ change or a ‘major’ change. All changes must be included in a change control log. Any ‘major’ and ‘notifiable’ changes must be submitted by the client for review by the regulator. ‘Major’ changes will incur a fee and a six-week review period while the regulator determines compliance. This has a potentially significant effect on the process and timelines. This is particularly true for certain design changes, as well as for where products and systems on external walls or those forming part of the active fire control systems may be substituted due either to design or supply issues. ‘Notifiable’ changes also cover changes to products and systems that have a higher classification under the reaction to fire classification.

Product substitution has been a relatively ‘dark’ area for the design team. For example, in a survey carried out as part of the Code for Construction Product Information (CCPI) project with the Construction Products Association (CPA), NBS found that only one-third of respondents said that, where products were substituted, this was always done with approval. This change control process should provide more certainty for specifiers and perhaps less ‘spec busting’ for manufacturers. However, questions remain over what a ‘like-for-like’ substitution will be.

The change control process introduced as part of the Building Safety Act will ensure that any substitution that takes place must be done in line with the performance requirements of the specification and will be visible to the specifier. For specifiers, and for the industry as a whole, this is an opportunity to ensure that the project (as designed) actually gets built.

There is more information on the ‘golden thread’ and the change control process here.

Construction products

Construction products featured highly in Dame Judith Hackett's Building a Safer Future report. Some key statements in chapter 7 include: ‘The system that covers product testing, labelling and marketing is at least as complicated as the entire regulatory system that was mapped in the interim report…. A clearer, simpler and more effective system of specification and testing of construction products is required in order to ensure that those who are responsible for delivering safe building outcomes are supported to discharge their duties.’

The BSA focuses on the role of safety with regard to construction products and systems. In January 2021, the government announced that the Office for Product Safety and Standards (OPSS) would take on responsibility for the national regulation of construction products. This is in line with a recommendation made in the Hackitt report.

The OPSS started work to establish the new regulator in April 2021 and has begun to lead and coordinate work that will set a new regulatory approach for construction products. The intention was that the National Regulator for Construction Products (NRCP) will become fully operational once the Building Safety Act and subsequent secondary legislation have been approved by Parliament. This new legislation would give the OPSS all the necessary legal powers to carry out in full its duties as the regulator. However, details of this regulator remain opaque, despite the October 2023 start date. In particular, we still do not know which products will come under the auspices of the new regulator. However, we can already see several construction products that have been recalled. A list can be found here.

A subsequent report by Paul Morrel and Anneliese Day (Independent Review of the Construction Product Testing Regime) also demonstrated the chaotic system of product regulation, standards and testing, both in the UK and in Europe. Morrel and Day argue that all products should fall under the scope of safety. It will be interesting to see how this emerges over the next few weeks and months.

Manufacturers will also need to understand how their sales, marketing and technical information will be managed in the future, as they distribute this information into the record-keeping systems of their customers. For those that also provide design services, they will also need to consider whether they have become one of the ‘designers’ within the Act. More information on product information can be found here.

Failure to comply

As part of the move towards a safety-led process, the Building Safety Act has significant enforcement options. Of particular note is that for those who are convicted of ‘[p]roviding false or misleading information to BSR’. They can be imprisoned of up to two years and can have an unlimited fine imposed. The same sanctions can be applied for ‘contravention of the building regulations’ and for a ‘failure to comply with a compliance and stop notice’. These sanctions apply to all building works and (it would appear) will apply to all parties, including clients, designers, contractors and manufacturers. The HSE notes that ‘[d]irectors and managers can also be found liable’. The period in which enforcement action can be taken has been extended from 12 months to ten years post completion.

Summary

The introduction of the processes defined in the Building Safety Act will undoubtedly make the industry a safer place, particularly for those who live and work in higher-risk residential buildings. Many of the new processes will be seen as simply codifying best practice and getting the industry to do what it should always have been doing.

For specifiers and manufacturers, the introduction of the ‘golden thread’ of information will be seen as ensuring that the industry delivers the handover information that it should already have been delivering for many years, and as ensuring that handover information accurately reflects the building as built. This is predicated on employing an effective change management process.

For those that fail to change, or that provide misleading or false information, the Act has significant enforcement options. In addition to unlimited fines, criminal sanctions can be applied for major contraventions. The solution is clear. Collaborative teams that source construction data with effective information exchange and record keeping will have nothing to fear.

Further reading