Concern about safety standards in our buildings has intensified dramatically over the last four years. A particular focus has been fire risk and the performance of external cladding systems. This close scrutiny has prompted the Government to signal the introduction of new legislation. The Building Safety Bill is the start of this process and probably won’t be the last as debate continues about the current system for building control in the UK and its fitness for purpose. The lack of confidence that buildings have been designed and built to be safe is evident in the introduction of the EWS1 form, developed by the RICS to unlock transactions halted by concern about possible cladding risk. The form, which relies on an expert assessment of the property, is designed to give purchasers and their lenders the confidence to proceed. The form was originally created to assess residential buildings over 18 metres tall but changes in Government advice in January 2020, has brought all residential buildings potentially within scope depending on the type of cladding.
Its introduction revealed a huge shortfall of qualified assessors to meet the surge in demand for forms. The Ministry of Housing, Communities & Local Government (MHCLG) estimates that 42,000 buildings need an EWS1 form. Currently only 100 of 300 fire engineers operating in the UK are signing them. In response, the Government provided funding to train a further two thousand building assessors and relaxed some of the rules so that owners of flats in buildings without cladding will no longer need an EWS1 form to sell or re-mortgage their properties.
If this is the impact of introducing a simple certification process, the consequences of the government’s new building safety regime, once introduced, could be much more far-reaching, leaving owners exposed to new liabilities and ill-equipped to meet them.
Clearer accountability underpins the emerging legislation. That means new roles and new responsibilities for building owners and their management teams. Overseeing this will be the new Building Safety Regulator, a safety body that will scrutinise the design, construction, and occupation of high-risk buildings. Established as an independent source of expert advice it will be a point of reference for landlords and owners, the design and construction community, and residents.
Although prompted by concerns about cladding and external walls, the likely legislation will take a broader view of fire risk and encompass the entire building. It will however introduce a specific process for the certification of facade systems and products, as well as requiring that installation work is conducted by accredited installers, and monitored independently.
The new compliance regime, once it’s finally in place, will radically reshape building design, procurement, and construction practice, as well as the way real estate is transacted. It won’t be possible to occupy a new building or sell an existing building if it doesn’t have a Building Safety Certificate issued under the Regulator’s compliance regime. The Certificate will need to include two named parties with designated roles; the accountable person and the building safety manager. Those roles come with legal responsibilities.
The Building Safety Regulator will require Safety Cases to be provided for new or existing residential buildings above 18 metres. This strategy document, submitted for approval by the Regulator, will need to demonstrate the measures that have been adopted for effective risk management and building safety. It’s only once approval has been given that a Building Safety Certificate will be issued. The Safety Case is a living document, displayed in the building, subject to periodic review and carrying the jeopardy of remedial action if safety standards are neglected.
The Regulator will set up a register of companies to assess high rise buildings and develop Safety Cases. Whilst the need for a Building Safety Case won’t be mandatory for two years, MHCLG recommends that building owners need to start this process now.
For building owners, the exposure to greater liability for fire safety is clearly a new area of risk. The building safety manager, for example, may not be expected to have an in-depth knowledge of the evolving legislation or the relevant technical guidelines. All the more reason to ensure they are supported by an expert. This is an area that calls for a mix of skills, a combination of construction knowledge with legislation and building management skills brought together to develop safe and effective strategies designed to accommodate future changes in the law as they occur.
Fire safety won’t be out of the public discourse anytime soon. The emergence of new legislation and the formal roles it will create for duty holders means that owners need clear and informed professional advice to understand their new responsibilities and the risks that come with them.
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