Newsletters Criminal Regulatory 8th Oct 2021

The Building Safety Bill: A Sea Change

On 5th July, following a three year scrutiny and public consultation process, the Government introduced a revised draft of the Building Safety Bill[1] into the House of Commons. The Bill represents a wholescale reform of the building safety regime, in line with the recommendations of Dame Judith Hackitt’s 2018 Independent Review ‘Building a Safer Future’ which followed in the wake of the Grenfell Tower fire. The published aim of the Bill is an ambitious one, namely to “overhaul regulations, creating lasting generational change, setting out a clear pathway on how residential buildings should be constructed, maintained and made safe”.

Part 2 of the Bill introduces a new regulatory regime directed at ensuring the safety of residents in residential buildings. Specifically, the Bill establishes a new national Building Safety Regulator which will be within the Health and Safety Executive and report to the Secretary of State. The Regulator will be responsible for developing and implementing the new regulatory regime and will have three functions:

  1. Overseeing the safety and performance system for all buildings, including advising Ministers on changes to building regulations, identifying emerging risks in the built environment and managing the performance of building control bodies and inspectors;
  2. Assisting and encouraging the improvement of competence in the built environment industry amongst building control professionals, and improving building standards; and;
  3. Leading implementation of the new, more stringent regulatory regime for higher risk buildings including powers to order remedial works and stop non-compliant works on higher risk buildings. The Regulator may also appoint special measures for failing projects and order the replacement of key Dutyholders and fire safety officers.

Under the Bill “higher risk buildings” are defined as buildings (in England) that are at least 18 metres in height or have at least seven storeys and contain at least two residential units. The Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations, published in draft with the Bill, provide that care homes and hospitals will be higher-risk buildings but secure residential institutions, temporary leisure establishments (e.g. hotels) and military establishments will be excluded.

The Bill sets out a proposed regime of Dutyholders for higher-risk buildings, in similar roles to the CDM Regulations for the design and construction phase. Those who fail to meet key building safety obligations will be criminally liable.

The Bill also establishes the role of the Accountable Person for higher-risk buildings defined (at section 69) as either holding a legal estate in possession in any part of the common parts (including the structure and exterior) or under a relevant repairing obligation in relation to any part of the common parts. It is proposed that they will be criminally liable should they contravene, without reasonable excuse, any requirement under the Bill and “the contravention places one or more people in or about the building at critical risk”, defined as a “significant risk of death or serious injury arising from a building safety risk” (section 101). Where the duty holder is a corporate entity, individuals within that organisation may also be prosecuted where the breach was committed with their consent or connivance or as a result of their neglect. Landlords are likely to be considered as Accountable Persons as well as management companies.

This of course is a draft Bill and it is understood that the Government is continuing to consult with the building industry on its contents. However, whilst aspects of the Bill will be subject to amendment, when it finally receives Royal Assent some time in 2022 it will mark a sea change in the building safety landscape. Duty holders will quickly have to develop appropriate competencies and procedures to ensure compliance with the new regime.


Alexandra Tampakopoulos


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