Plotting a course

Capita’s Patrick Cunningham FCABE discusses sanctions and risk in a new era for statutory control of buildings.

In crude terms, if the Fire Safety Bill is to be the regulatory device that is used – along with the upcoming Fire Safety Order (FSO) 2021 – to correct deficient existing building stock in England, then the Building Safety Bill (and its updates to the Building Act 1984, along with the current Building Regulations 2010-2022 and Fire Safety Regulations 2021) will be the regulatory device used to ensure that future construction of all buildings avoids the now known pitfalls of the past.

The Fire Minister told the House of Commons during the Fire Safety Bill debate that the government is going to change the first draft of the Building Safety Bill, before it is sent to parliament (October 2021). This includes requiring the:     

• use of competent fire risk assessors     
• recording of fire risk assessment reports     
• publishing of their summaries and details of their premises information box and personal emergency evacuation plans.

The Building Safety Bill will be laid in parliament, following pre-legislative scrutiny by the Ministry of Housing, Communities & Local Government (MHCLG) Select Committee. When that happens, the government is likely to confirm all the recommendations of the Grenfell Inquiry’s phase 1 report and that Dame Judith Hackitt’s final report will be made law. This would be enacted by either new fire regulations being made under Article 24(1) of the FSO 2005 or, where necessary, on the face of the Building Safety Bill. This will be supported by the publication of secondary legislation drafts and the forthcoming revised FSO 2021.

Critically, the Building Safety Bill will move all court cases brought under both its new powers and the Building Act 1984 to the first tier of the High Court (Crown Court) and out of the local Magistrate’s Court. This will enable a body of case law to develop for building control issues.

Since the passing of the Health and Safety at Work Act 1974, the Health and Safety Executive (HSE) – the current regulatory home and soon-to-be godparent of the future independent Building Safety Regulator – has used its mandate to prosecute guilty parties and failed duty holders after serious incidents, casualties and deaths, as well as near-misses that had true potential for greater harm. Thus many rogue employers, sub-contractors, designers, landlords, unregulated gas-fitters and electricians have been in the Crown Court, and several have been jailed. Many have received eye-watering fines and legal costs as the 1974 law provides for unlimited fines and/or jail time.

In 2017, the Crown Court fine (under the FSO 2005 law) for the owners involved in the 2009 Lakanal House fire – the UK’s precursor to the Grenfell Tower fire – was £500,000. Alas, the “within two years” rule in the Building Act 1984 prevented building control-related charges from being brought in this case.

The Building Safety Bill also introduces duties to comply with Building Regulations on existing CDM dutyholders. New sanctions include unlimited criminal fines in respect of any failure to show that their work and/or the work they oversaw and/or were involved with adequately complied with the Building Regulations requirements (as set out in Schedule 1 of the Building Regulations 2020). Charges may be brought by the relevant building control authority up to ten years after a building safety offence was committed (significantly longer than the current two-year limit).

Alongside these much enhanced sanctions, one would anticipate that the newly announced Construction Products Safety Regulator will also be able to prevent the kind of race to the bottom as revealed by the final report from the Dame Judith Hackitt review.    

Keep up to date at bit.ly/HSEBuildingSafety

Image credit | Alamy