This cross -party Committee report makes important critical recommendations on the Government’s approach to implementing Dame Judith Hackitt’s report following the Grenfell Tower Fire on 17 June 2017.The Bill seeks to establish the Building Safety Regulator to oversee a rigorous new regulatory regime for the design, construction and occupation of higher risk buildings. The bill is contained in 5 parts and has 331 pages. Part 1 covers the introduction. Part 2 establishes the Building Safety Regulator and the scope of the new regulatory regime for higher-risk buildings. Part 3 aims to improve industry competence for a new duty holder regime during the design and construction of higher-risk buildings. Part 4 continues the duty holder regime by establishing the roles of accountable person and building safety manager and makes provision for improving resident engagement. Part 5 deals with the regulation of construction products, for a new homes ombudsman, and changes the manner in which complaints can be made to the Housing Ombudsman.
The Committee believe that the Bill could dramatically improve building safety. Their critical recommendations are:
1. The Government must include as much detail in the bill or publish secondary legislation especially regarding core provisions such as the Gateways process and the regulation of construction products,
2. A timetable is needed so it is clear by when the industry has to demonstrate compliance.
3. The Government must recommit to the principle that leaseholders should not pay anything towards the cost of remediating historical buildings safety costs and amend the Bill to explicitly exclude historical costs from the building’s safety charge.
4. The initial scope of the regime needs be enshrined in the Bill itself, and not be left to delegated legislation, in order to give stakeholders, the certainty to prepare for the new regime.
5. The Bill itself needs to contain a requirement to ” have regard “ to the factors that must be considered in the future in the new building safety regime and that the ability of residents of residents to evacuate the building must be the main factor.
6. The Bill itself must contain a national system of third-party accreditation and registration for all professionals working in the design and construction of higher-risk buildings.
7. The ability of duty holders to appoint their own building control body should be removed from the bill as proposed by the Hackitt report.
8. The Bill needs to contain a general duty on accountable persons to co-operate in buildings for which there are multiple accountable persons.
9. The Government must publish statutory guidance outlining how it expects accountable persons and responsible persons to co-operate in practice. The bill proposes an additional safety regime which will sit alongside the current regime contained in the Regulatory Reform (Fire Safety) Order 2005. This could cause confusion.
10. The Government has yet to decide whether it will accept the work of the expert panel on the proposed competence framework for the role of building safety manager.
11. Government must publish in law a national system of accreditation to agreed common standards and for a central register of building safety managers.
12. Government must provide for the publication of test failures and re-run tests and for the establishment of an independent system of their third-party certification in order to introduce greater transparency and rigour into the regulation of construction products.
Problems with the bill
1. There is a problem of definition in clause 19 that defines higher-risk building as those of over 18 metres though changes, can be introduced by secondary legislation. It is quite clear that there are fire safety problems with low rise blocks. The Sunday Times recently described how a newly constructed and award-winning low-rise block in Worcester Park Richmond was burnt down in ten minutes. The cause of the blaze was identified as poor building construction. The London Councils body favour a definition that is based on the overall risk profile of the building. This should include all multi-occupied buildings where vulnerable people sleep as well as hospitals and care homes which are often less than 18 metres high. London Councils are very critical of the exemption in the bill for permitted development rights.
2. The Committee are concerned that clauses 88 and 89 permit leaseholders to be charged for the cost of remediating historical safety deficiencies for which they were not responsible , which may have pre-dated their occupation, and regardless of whether at the time of any earlier work the building complied with prevailing safety requirements. This flies in the face of repeated Government assurances that leaseholders would not have to pay.
3. The Committee is unhappy that leaseholders would have to pay the new building safety charges bill within 28 days. Table 36 on page 64 of the bill’s impact assessment gives a possible potential cost of £78,000 per flat in a block of above 30 metres. This issue will assume greater significance when all leaseholders realise what future the Government has in store for them. The permanent secretary at MHCLG believes that there are 11,300 relevant buildings over 18 metres, of which 2,155 have some form of cladding problems.
4. The bill is silent on many of the details which are to be enacted by secondary legislation. The Leasehold Knowledge Partnership has calculated that there are 569 references to regulations that are not yet published. This will allow the Government to unilaterally introduce legislation without adequate scrutiny by Parliament. The Committee are unhappy that paragraph 16(1) to schedule 8 in the bill provides for a power to repeal, amend, or re-enact not only retained EU Law and the Construction Products Regulations 2013 but any enactment other than this draft bill. No justification is provided for amending primary legislation.
5. The bill does not address the issue of making those responsible for the building and design of unsafe buildings and accountable. The society of Labour Lawyers in their evidence to the committee has suggested a number of ways to do this. In Australia, the Victoria Building Authority has wide powers against the owners of defective buildings. The authority provides funding for cladding works and can pursue civil claims for compensation against any person for non-compliant work.
The Sunday Times and the magazine Inside Housing have launched a 10-point plan to end the cladding scandal. Progressive opinion needs to get behind this campaign so that when the bill is introduced into Parliament that the Government feels the pressure to amend the bill in order to address the concerns of the Select Committee and leaseholders. Councillors of all political persuasions need to be lobbied to get their local council to sign up to this campaign. The 10-point plan has been endorsed by all members of the Greater London Assembly. Hopefully, Gareth Bacon MP who leads the Conservative Group on the London Assembly and is also the MP for Orpington as well as a local councillor in Bexley can persuade his colleagues on Bexley and Bromley Councils to endorse this campaign.