An update on the Building Safety Bill – Legislation round-up, UK Construction Focus | Dentons

Government discussions with the industry on proposed solutions

DLUHC clarifies developer commitments to remediation

• On 3 February 2022, the DLUHC requested more information from developers on buildings over 11 metres that they have worked on and provided additional information on the government’s expectations of developers in regard to commitments to remediate. See the DLUHC letter to developers with attached Key Features Document, 3 February 2022.
• The DLUHC confirmed it was taking steps to codify the commitments expected from developers based on their two fundamental propositions: (1) developers to commit to remediating those buildings which they themselves played a role in developing or refurbishing; and (2) developers to provide financial contributions towards a fund which will cover the costs of all other 11-18 metre buildings with critical life cladding safety defects. The commitments, which will be legally binding once agreed, include:
  • a commitment to prompt remediation of historical defects that are already identified or are discovered in future in buildings the developer or persons associated with it has had a role in developing;
  • regular reporting on pace and transparency of work;
  • compliance with agreed controls and frameworks on the proportionality of the work to be undertaken;
  • contribution to an 11-18 metre remediation fund for those buildings where direct remediation has not occurred or cannot occur;
  • evidence of senior officers and managers being fit and proper persons to undertake major-scale development with lasting social and economic impact; and
  • suitable processes to audit, assure and review membership, including consequences of joining and conditions of admission for new entrants.
• A Key Features Document was attached to the DLUHC letter setting out:
  • a proposed method for codifying these commitments;
  • invited views on how best to: apportion contributions between participants as well as over time; operationalise and structure the fund; and ensure a proportionate approach to work, focused on critical life safety to the benefit of residents;
  • conditions that will apply to all relevant developers who commit to the terms of the remediation scheme. The scope of the conditions includes making financial contributions to the cost of remediation works relating to cladding defects on all 11-18 metre residential and mixed-use buildings; and funding and undertaking all necessary remediation work relating to buildings in which the developer played a role in developing or refurbishing.
• Developers (who are defined as entities generating or expected to generate profits from developing residential land exceeding £[10] million per annum or those developers electing to join the scheme) were warned that those who did not meet the required criteria risked being excluded from government services, funding and planning-/construction-related services such as planning control.
• In the Home Builders Foundation (HBF) letter to Mr Gove of 25 February 2022, HBF executive chairman, Stewart Baseley, confirmed that HBF remains “committed to the principle that leaseholders should not have to pay for necessary remediation costs arising from the design or construction of buildings they live in, and [HBF] wants to work constructively with [the DLUHC] to achieve this”. Mr Baseley set out what HBF members would be able to commit to including: funding remedial works using a proportionate and risk-based approach (to be agreed); remediating buildings dating back to 1 January 2000; and withdrawing from the BSF – applicable to buildings over 18 metres.

Procurement Guidance on improving building safety

Procurement Guidance on improving building safety

26 January 2022

• The DLUHC has commissioned and published Collaborative procurement guidance for design and construction to support building safety (26 January 2022). It was written by Professor David Mosey of King’s College London and Russell Poynter-Brown of On-Pole Limited working in collaboration with the Procurement Advisory Group. The report reminds us of Dame Judith Hackitt’s recommendations that procurement processes used across the construction industry need to be improved urgently. The guidance “examines evidence of the ways in which collaborative procurement can lead to safer, better-quality outcomes, and explains how clients and their project teams can use collaborative procurement”. The guidance:
  • supports the new regulatory regime reforms and recommends procurement and contracting questions that should be addressed in advance of each “gateway” application;
  • supports public and private sector clients and their advisers when implementing collaborative processes, relationships and systems as features of their procurement strategies, procedures and contracts for relevant projects;
  • breaks down collaborative procurement into four specific proposals for adoption on any relevant project: “Selection by value that avoids a race to the bottom (Section 5); Early supply chain involvement that improves safety and reduces risks (Section 6); Collaborative relationships that improve commitments and involve residents (Section 7); and a golden thread of information that integrates design, construction and operation (Section 8)”; and
  • explains what systems sustain and enhance a collaborative culture (Section 9); how strategic collaboration can embed improved safety (Section 10); how collaborative procurement enables public and private sector clients and their teams to achieve other improvements in economic, social and environmental value as well as safety improvements (Section 11); and outlines team-building techniques through which the collaborative culture of in-scope building projects can be cultivated (Section 12).
• The DLUHC intends the guidance to be updated regularly and to reflect secondary legislation accompanying the Bill.

Latest ISSG report – change of culture needed

The third annual report of the Industry Safety Steering Group

Related legislation and guidance

The Fire Safety Remediation Charges (Recovery and Enforcement) Bill

• The Fire Safety Remediation Charges (Recovery and Enforcement) Bill is a Private Member’s Bill that was presented to Parliament on 24 January 2022 by Ms Daisy Cooper MP. It aims to “introduce a moratorium on recovery and enforcement action by freeholders and managing agents relating to service charges increases, fees or demands for payment in respect of leaseholders’ share of the costs of fire safety remediation work”. The second reading of the bill in the House of Commons is scheduled for 6 May 2022.

Fire Safety Act 2021

• The Fire Safety Act 2021 received assent on April 2021 and was introduced to update fire safety measures in multi-occupied buildings. Further information about the background to the Act can be found in the Lords Library briefing The Fire Safety Bill Briefing for the Lords Stages.

Leasehold reforms planned

Building Safety Data Release, published 17 February 2022

• Meanwhile, the government continues to publish its monthly data from its Building Safety Programme. The 51st monthly data release from the government’s Building Safety Programme can be accessed here: Building Safety Programme: monthly data release – January 2022.
• This latest publication confirms that, at the end of January: 93% (449) of all identified high-rise residential and publicly owned buildings in England had either completed or started remediation work to remove and replace unsafe Aluminium Composite Material (ACM) cladding; 415 buildings (86% of all identified buildings) no longer have unsafe ACM cladding systems; 100% (160) of social sector buildings have either completed or started remediation; and 88% (199) of private sector buildings have either completed or started remediation.

EWS1 Building safety forms and introduction of PAS 9980:2022

Background to EWS1 forms and recent guidance

• External wall fire review process forms (EWS1 forms) were developed by the Royal Institution of Chartered Surveyors (RICS), UK Finance and the Building Societies Association “to support the valuation process for high-rise residential buildings with cladding”. The form has been used to report on whether combustible material on the external façade of a residential building is present/absent. An EWS1 form is not a government or regulatory requirement, nor is it a building or life safety assessment.
• RICS guidance on how to determine whether a building needs an EWS1 form was published on 8 March 2021 and effective from 5 April 2021. The guidance note was intended to support valuers undertaking valuations for secured lending purposes on domestic residential blocks of flats in the UK. For further information on EWS1 forms, read the RICS FAQs.
• Amongst the government’s proposed building safety measures proposed on 10 January 2022 were:
  • the withdrawal of the Building safety advice for building owners, including fire doors (also known as the Consolidated Advice Note (CAN)) on the basis that it “has been wrongly interpreted and driven a cautious approach to building safety in buildings that are safe”. The CAN, which was published in January 2020, included measures for building owners to take to ensure their buildings are safe. Lenders relied on the CAN to justify their requirement for a completed EWS1 certificate; and
  • government support for new proportionate guidance for fire risk assessors from the British Standard Institution’s updated guidance.
• The government withdrew the CAN on 10 January 2022. Future assessments are to be undertaken in accordance with British Standard PAS 9980:2022 (assessing the external wall fire risk in multi-occupied residential buildings (although PAS 9980:2022 is not proposed as a replacement to an EWS1 form and previous guidance on how to use an EWS1 form is retained).
• The government published EWS1 (or equivalent) lender data on mortgage valuations for flats: April to December 2021, United Kingdom on 17 February 2022. The data received by the DLUHC shows that most mortgage valuations for flats do not require an EWS1 form or equivalent.
• PAS 9980:2022 – Assessing the external wall fire risk in multi-occupied residential buildings was published in March 2022 to provide “a methodology for the fire risk appraisal of external wall construction and cladding of existing multi-storey and multi-occupied residential buildings”. It is “particularly intended for use by competent fire engineers and other competent building professionals tasked with advising on the fire risk of external wall construction of existing blocks of flats”.

RICS updates EWS1 form

• RICS, UK Finance and BSA updated the EWS1 form on 16 March 2022 to reflect the withdrawal of the CAN.
• RICS also updated the RICS guidance note. In summary, the criteria for the guidance remains valid but, following the withdrawal of the CAN, the guidance note now identifies what interim work is needed and includes a boilerplate stating that this guidance was drafted with reference to government guidance in force at the time, which has now been withdrawn and replaced with the publication of PAS 9980:2022. The guidance note remains valid and under review by RICS’ independent Standards and Regulation Board.
• RICS believes the EWS1 form, which has been made electronic, will be easier to use – although its use should reduce as more Fire Risk Assessments are carried out under the PAS 9980.

London Mayor issues EWS1 guidance to support leaseholders

• The Mayor of London, Sadiq Khan, launched new guidance to encourage landlords and managing agents to help leaseholders get EWS1 forms, to facilitate EWS1 inspections and to understand building safety risk. The EWS1 form provides “a simple assessment of building safety to support mortgage, lease and staircasing negotiations”. Leaseholder and building safety organisations support the new guidance.
• The guidance recommends that landlords and managing agents should commit to facilitating EWS1 assessments, prioritise the most at-risk buildings for assessment and clearly set out how the costs of an EWS1 assessment will be met, shared or reimbursed. Leaseholders should be kept fully informed, about not just EWS1 assessments, but also the costs and implications of wider building safety issues. See Mayor to help leaseholders get vital building safety information.

The Building Safety Fund (BSF)

Guidance on the Remediation of Non-ACM Buildings Information Relating to the Building Safety Fund

• The government announced the creation of its Building Safety Fund (BSF) in March 2020 confirming it would provide £1 billion in funding in 2020 to 2021. The BSF was intended to support the remediation of unsafe non-Aluminium Composite Material (ACM) cladding systems on residential buildings 18 metres and over in both the private and social housing sectors. The government guidance on the Remediation of non-ACM buildings, which provides information relating to the BSF for the remediation of unsafe non-ACM cladding systems, was updated on 17 March 2022.
• Information relating to the BSF for the remediation of unsafe non-ACM cladding systems was updated on 17 February 2022. It includes “guidance for private sector building owners whose leaseholders would otherwise incur the costs through service charge arrangements and social sector housing providers who have demonstrated during the registration process that the costs of remediation are unaffordable or are a threat to financial viability”.

Building Safety Fund: A step by step guide for leaseholders and residents

• New government guidance, applicable to England: Building Safety Fund: A step by step guide for leaseholders and residents, was published on 20 January 2022. It provides a guide to the BSF process for leaseholders and residents of buildings over 17.7 metres with cladding systems that meet the BSF criteria. The aim of the BSF is to protect leaseholders from the cost of addressing fire safety risks, caused by unsafe non-ACM cladding systems on high-rise residential buildings. To help leaseholders and residents understand wording used in the BSF Leaseholder and Resident Service, a Building Safety Fund: Leaseholder and Resident Service glossary has also been published.
• (Note that the process is slightly different for social housing applications and the DLUHC has a separate in-house team which deals with these.)
• The guidance outlines the process of applying to the BSF. The application is made by the building’s responsible person (for example, the freeholder or head leaseholder) who registers for funding and prepares the project plan for the required works for approval by the delivery partner (Homes England or The Greater London Authority). Once the plan is approved as eligible under the BSF, the responsible entity signs a legal agreement and the building works progress. Once finished, the responsible entity must submit a certificate to their delivery partner showing the works comply with building regulations and project costs. Remaining payments under the BSF will not be paid until all terms and conditions are met.

BSF process tracker launched

The Building Safety Fund Leaseholder and Resident Service

• The Building Safety Fund Leaseholder and Resident Service is an online service set up to provide leaseholders and residents with access to information about the status of their building’s application to the BSF. The service improves transparency in the process and highlights failures by building owners to take action to make buildings safe.
• Government guidance, Find support as a leaseholder or resident of a building in the Building Safety Fund (BSF) process, was published on 11 March 2022. The guidance explains the BSF process and supports leaseholders or residents of a building that has applied to the BSF. It contains useful information such as a step-by-step guide, FAQs on the service, a glossary and a template letter for writing to the building’s “responsible entity”.

Welsh approach to building safety – overview

Safer Buildings in Wales – reform proposals

• The Bill gives powers to the Welsh government to implement its own reforms to building safety in Wales. Developers working across England and Wales will therefore need to understand and implement different regulations as appropriate.
• The Welsh government published and consulted on its proposed changes to the residential building safety regime in Wales as set out in its White Paper, Safer Buildings in Wales: A Consultation published in January 2021. The consultation documents can be found here and guidance for residents was set out here: Safer Buildings in Wales: consultation guidance for residents. The consultation ended in April 2021 and the Welsh government’s response was published in December 2021.
• While the Welsh government is taking a similar approach to reform as the UK government, including new “duty holder” roles and a golden thread flowing through a building’s lifespan, there are some differences to be aware of. In summary, it covers all buildings containing two or more dwellings (i.e. not individual dwellings) which will have to have an “accountable person” and undertake an annual fire risk assessment. Buildings of 18 metres and over will be subject to the strictest requirements. Generally, the building control function for buildings of 18 metres or more will fall to local authorities.
• The timing for the implementation of new Welsh regulations is expected to follow the UK timetable. Further details on the Welsh approach to building safety reform can be found on the Welsh government’s home safety and repairs website.

Scottish approach to building safety – overview

Overview of the Scottish approach to building safety

• The Building Safety Bill applies to England and Wales but there are also provisions that apply to Scotland (for example, the new homes ombudsmen scheme). In Scotland, currently, building safety requirements are covered by the Building (Scotland) Act 2003 (under which the Building Scotland Regulations 2004 were introduced) and fire safety is dealt with in the Fire (Scotland) Act 2005 (under which the Fire Safety (Scotland) Regulations 2006 were introduced).
• Following the Grenfell Fire, the Scottish ministerial working group on building and fire safety has been meeting since June 2017 to “oversee reviews of building and fire safety frameworks, regulations and guidance, and any other relevant matters, to help ensure that people are safe in Scotland’s buildings”. They have:
• The ministerial group has confirmed (here) that “Building standards in Scotland are not retrospective and unless evidence arises to the contrary, buildings that have a building warrant and valid completion certificate [will be taken as having] complied with the regulations at the time. Where evidence of non-compliance or fire safety concerns arise, for whatever reason, then building owners should take immediate action to investigate and manage the situation.”
• Developers working across the UK will therefore need to understand and implement different building safety regulations depending on where they are building.