Written evidence submitted by the Local Government Association [BSB 062]
1.1. The Local Government Association (LGA) is the national voice of local government. We are a politically led, cross-party membership organisation, representing councils from England and Wales.
1.2. Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems.
2.1. The LGA welcomes the introduction of the Building Safety Bill for pre-legislative scrutiny. We are confident that it will strengthen the building safety system in the UK, especially in relation to new buildings. It is, therefore, an important step in the right direction.
2.2. Since the draft Bill’s publication, we have become concerned about the conflict between its provisions, particularly regarding the Gateways, and the proposals in the Government’s Planning White Paper. If a means is found to retain the benefits of Gateway One, despite the proposed changes to the planning system, we urge the Government to ensure those benefits also apply in relation to developments under Permitted Development Rights
2.3. We are particularly concerned about the Bill’s implications for existing buildings and leaseholders living within them. This is because of the difficulty of funding building safety measures without bankrupting leaseholders. Residents, leaseholders, freeholders who have purchased buildings in good faith, council taxpayers and housing associations should not be left to pick up the pieces of the broken building safety system. Government needs to fund a recovery programme in the housing sector and the developers who have profited from providing inadequate buildings should be required to pay their share of the costs.
2.4. There is also a lack of expert capacity to address safety issues. This includes a lack of fire engineers, a shortage of surveyors and assessors with sufficient knowledge of both high-rise structural safety and cladding systems, and the difficulty in obtaining Professional Indemnity Insurance experienced by those who do have expertise in these areas. This lack of capacity could delay the implementation of the Bill and limit its scope. The UK needs to invest in addressing this skills shortage as soon as possible.
2.5. We are concerned that the scope set out in the Bill is inappropriate as we think that determining risk on height alone is too simplistic. While we have no doubt that the Government intends to extend the scope over time, there is no requirement to do so in the Bill and this needs to be addressed. We would like to see a firm commitment on the face of the Bill to extending the scope at the very least to all care homes and all residential blocks over 11 meters within a clear timescale.
2.6. We would like to see the establishment of a fund to cover remediation costs and recommends that stakeholders examine how the industry might contribute to such a fund. This should allow building owners to spend the money in the most cost-effective way to ensure residents safety, for example, by installing sprinklers.
3.1. The Government’s overall policy intention in bringing forward this Bill is to achieve a fundamental reform of the building safety system and to ensure that new buildings are built to safer standards and existing ones are managed safely. Specifically, Government is committed to implementing the recommendations of Dame Judith Hackitt’s review and learning the lessons of the Grenfell Tower fire.
3.2. The LGA has worked with officials drafting the Bill and we have been regularly consulted on the issues it covers. The Bill is only part of the proposed new system. As the explanatory note[i] sets out, key aspects will be detailed in secondary legislation. In addition, the ongoing reform of the Buildings Regulations Guidance (Approved Documents) and the Fire Safety Bill will have key roles to play in making sure buildings are safe.
3.3. Dame Judith’s report saw a culture change in the building industry as an essential pillar of the new system. Such a change cannot be guaranteed in legislation and will only take place once the industry recognises the need for change and acts upon it. Many in the industry have recognised this and have taken action to drive the culture change that we need. In order to protect the public and those parts of the industry that have responded positively to Dame Judith's recommendations, a strong regulatory framework will be required to drive culture change in the parts of the industry that have not yet begun to change.
3.4. On paper - and dependent on the necessary secondary legislation being passed and sufficient funds provided - the Bill provides the strong regulatory system needed to achieve these aims. Nevertheless, we have concerns in the following areas:
3.4.1 The difficulty of funding building safety measures without bankrupting leaseholders.
3.4.2 The conflict between the new building safety system and the Government’s planning white paper.
3.4.3 The scope of the Bill, the speed at which its scope can be expanded and the constraints on its expansion.
3.4.4 How the charging provisions in the Bill will work and set-up costs for the Building Safety Regulator.
3.4.5 The alignment of this Bill with the Fire Safety Bill.
3.4.6 The adequacy of the product safety provisions.
3.4.7 The limited removal of competition in building control
3.5. The first of these issues is dealt with in section 7 below, but it is important to note here that the Bill’s greatest shortcoming is that it sets out a thorough and detailed system which may yet prove unworkable if it is not implemented in a manner that protects existing leaseholders from excessive charges. While we know Government is giving much thought to avoiding this outcome, the Bill has the potential to have a negative impact on the housing market and cause new problems if there is insufficient political will to protect the position of blameless leaseholders in existing buildings.
The Bill’s conflict with the Planning White Paper
3.6. The achievement of the policy objectives behind the Bill is dependent not only on the Bill itself, but on secondary legislation and other measures. As the explanatory notes accompanying the Bill make clear, ensuring new buildings are built to an acceptable standard depends on the system of ‘Gateways’. These are to be achieved through secondary legislation and statutory guidance under the Town and Country Planning Act 1990.
3.7. Despite their absence from the Bill, these Gateways sit at the very core of the new system. They provide the regulator with an opportunity to ensure new buildings meet the right standards and without them it will be difficult for the Building Safety Regulator to prevent more dangerous buildings from being constructed. Without them, the Bill cannot achieve the Government’s aims for new buildings
3.8. According to the explanatory notes, at Gateway One, the Building Safety Regulator will be a statutory consultee in the planning process and will require those submitting planning applications to include a Fire Statement demonstrating that ‘fire safety requirements which impact on planning considerations have been considered at an early stage and incorporated into the proposals’. This would include issues such as fire engine access, water supply, and the effect on neighbouring buildings in the event of a fire.
3.9. However, we are concerned that has already been undermined by changes to the Permitted Development Rights. The explanatory note states that under Permitted Development Rights, a building will bypass Gateway One and go straight to Gateway Two when the regulator approves the start of construction work on the basis of a study of the detailed plan.
3.10. As the reforms envisaged by the Government’s Planning White Paper remove the existing planning application process for individual buildings, we assume that Gateway One is also removed – at least as far as it is described in the explanatory notes. In the absence of a planning application stage, it is unclear who the duty to submit a fire statement would fall upon and at what point the requirement to do so would be triggered. As stated above, the Government’s approach to these questions in relation to Permitted Development Rights has been to abandon Gateway One.
3.11. This raises the question of whether a fire statement can be required and the issues in it addressed at Gateway Two. We understand that is the intention in respect of Permitted Development Rights. This would still be less effective than the original Gateway One approach.
3.12. The existence of Gateway One means that developers must engage with the regulator at a very early stage. This is in everyone’s interest and reflects international best practice. The possible effect of the Government’s planning reform is that unexpected detailed plans will arrive at Gateway Two. These will be the result of a considerable amount of work which will be expensive to change and could all be wasted if the regulator decides the building simply cannot be built where it is proposed, a rare but possible outcome at Gateway One.
3.13. We understand the Government wishes to preserve the benefits of Gateway One, but it is important to stress that if it fails to do so it risks undermining the entire regulatory system of which the Bill is part.
3.14. We are aware that the difficulties outlined above are appreciated in MHCLG and are being addressed, although we are not aware of the detail behind this intention. If a means is found to retain the benefits of Gateway One, despite the proposed changes to the planning system, we urge the Government to ensure those benefits also apply in relation to developments under Permitted Development Rights.
The alignment of this Bill with the Fire Safety Bill
3.15. Since the Grenfell Tower Fire, neither the Housing Act nor the Fire Safety Order have been entirely satisfactory in enforcing the removal of dangerous cladding. Our preference would have been for a single piece of safety legislation, rather than having the Building Safety Bill and the Fire Safety Bill, and we remain concerned that, for example, the lack of a common term for the duty holder (an Accountable Person in the Building Safety Bill and a Responsible Person in the Fire Safety Bill) could yet prove counterproductive.
3.16. It will also be necessary to ensure that the Bill does not duplicate requirements for information gathering and sharing that are being introduced via the Fire Safety Bill and the consultation on secondary legislation in the wake of the Grenfell Tower inquiry.
3.17. Nevertheless, we accept that the Government recognises this issue and that it is working to ensure the Bills are complementary. We are also consulting our members on whether the definition of an Accountable Person in the Building Safety Bill will work in practice because identifying the Responsible Person has been difficult for councils when seeking to identify and remove ACM using the Housing Act and Fire Safety Order.
The limited removal of competition in Building Safety
3.18. The failure of the building safety system that this Bill seeks to remedy owes much to the ability of duty-holders to choose their building control regulator. The Bill rightly removes this, but only in relation to buildings deemed in scope. By requiring regulators to remain in competition with Approved Inspectors for the majority of buildings, the Bill leaves in place one of the root causes of the current crisis. Compliance with regulation cannot be a commodity and local authority building control should not be left to tackle non-compliance in buildings over 18 metres while simultaneously having to compete with private businesses for work in out of scope buildings, often owned by the same developers.
3.19. This shortcoming in the Bill could result in local authority building control being left as the default regulator for complex buildings that are costly to regulate, while owners select Approved Inspectors for more straightforward work where commercial pressures drive down the rigour of inspection. This in turn could result in the decline of local authority building control functions, to the point where they are no longer able to deliver the Bill’s objectives in relation to in scope buildings.
4.1. One of the challenges we are most concerned about in building safety is the lack of expert capacity to address safety issues. This includes a lack of fire engineers, a shortage of surveyors and assessors with sufficient knowledge of both high-rise structural safety and cladding systems, and the difficulty in obtaining Professional Indemnity Insurance experienced by those who do have expertise in these areas. This lack of capacity could delay the implementation of the Bill and limit its scope. The UK needs to invest in addressing this skills shortage as soon as possible.
4.2. We are concerned that the scope set out in the Bill is inappropriate. While have we have no doubt that the Government intends to extend the scope over time, there is no requirement to do so in the Bill and this needs to be addressed.
4.3. The current scope for defining higher risk buildings as those over 18 meters or 6 storeys is too simplistic. Height is one factor in determining risk. Others include issues such as the vulnerability of occupants (care homes tend to have a large proportion of residents who cannot self-evacuate, for example); the number of protected means of escape; the provision of fire alarms; and the means of construction.
4.4. A perfect risk-based system of prioritising buildings for inclusion in the more stringent regime is probably impossible to find. However, a more sophisticated approach to risk than the one in the Bill is perfectly practical and should be adopted. The Government is currently considering similar issues in relation to the commencement of the Fire Safety Bill and is doing so for precisely the same reason, namely that there is a lack of capacity in the system to deliver new fire risk assessments to all the residential buildings covered by the Fire Safety Bill that will need new assessments when it comes into force.
4.5. The problem with the height-based approach is not only that it will omit a number of dangerous buildings from the scope of the regulator, but that it will include a number of less dangerous ones. This will use scarce resource unnecessarily which could be deployed to life-saving effect elsewhere.
4.6. For example, the current scope would not have covered the Cube student residence in Bolton. In December 2019, the flammable cladding at the Cube rendered the only staircase untenable within half an hour and a resident was rescued from the top floor of the building moments before the flat from which she was rescued was destroyed by fire. This suggests that had the fire taken place later in the evening when more residents were asleep, it would probably have resulted in fatalities.
4.7. Whatever approach is taken to scope in the Bill, we are concerned that its passing may breed complacency and that the current intention to expand the scope over time may not be sustained. Although we would prefer a more sophisticated approach to risk, we would like to see a firm commitment on the face of the Bill to extending the scope at the very least to all care homes and all residential blocks over 11 meters within a clear timescale.
5.1. We support the sanctions provisions in the Bill. It is important to note that there may be difficulties that arise if some of the sanctions are only available in relation to in scope buildings. We would like to see the full range of sanctions available to building control in relation to all buildings.
5.2. We support the enforcement section (s90 onwards) in principle and agree that the special measures provisions are necessary, while making no judgement on whether they will prove practical.
6.1. We think that it is important that residents feel the Bill provides the mechanisms they need to ensure their voices are heard and that any safety concerns they raise are addressed in a satisfactory manner. We have no proposals to make as to what these mechanisms should be, other than to encourage the Committee to consider residents’ views on this, as we are sure it intends to.
7.1. The provisions around the Building Safety Charge seem acceptable in relation to new buildings. However, we are concerned that the inappropriate scope of the higher risk regime may mean that some duty holders will face costs that are not justified by the level of risk their building poses and which may then be passed on to leaseholders. By using height as the basis, not only will some higher-risk buildings be excluded but some, essentially safe, buildings will be included in what is quite an onerous regime.
7.2. The Bill fails to protect the position of leaseholders in existing buildings and they should not be expected to pay any additional costs, having acquired leases in good faith only to be left at risk of excessive bills by a systemic regulatory failure.
7.3. The position of those in shared-ownership homes is also very challenging. We are aware that the ability of those in shared ownership to ‘staircase' (the process through which an individual increases their proportion of shared ownership property) is affected by uncertainty over cladding safety. These residents need also to be protected from building safety charges in existing buildings.
7.4. There is also a risk that if it imposes too great a cost on managing agents or freeholders, these costs will either be passed onto leaseholder or force companies out of the business.
7.5. It is important to acknowledge the psychological challenges faced by many residents who are living in constant uncertainty and being slowly bankrupted by the costs of waking watches, remediation and increased insurance premiums, while being trapped in properties they cannot sell.
7.6. For the last two decades, the building safety system has failed. Responsibility for this lies with both the construction industry and national Government which – under Governments of different political colours - has for too long presided over an inadequate regulatory system.
7.7. Residents, leaseholders, freeholders who have purchased buildings in good faith, council taxpayers and housing associations should not be left to pick up the pieces. Government needs to fund a recovery programme in the housing sector and the developers who have profited from providing inadequate buildings should be required to pay their share of the bill.
8.1. The LGA’s experience of the product testing system as it applies to fire doors is that there is a lack of capacity, a lack of choice and a high cost. In addition, when test houses get advice wrong, there seems to be no effective recourse for manufacturers and their customers. The Bill does not address these issues.
9.1. One of Dame Judith Hackitt’s recommendations was to create a joint competent authority in which local government and the fire service – who will be required to deliver much of the building safety work - are treated as equal partners whose local knowledge is valued. Instead of implementing Dame Judith’s recommendation, this Bill creates a new regulator: the Building Safety Regulator which will sit within the Health and Safety Executive.
9.2. The LGA would have preferred to see Dame Judith’s recommendation implemented. Nevertheless, we are encouraged by the Health and Safety Executive’s approach to working with fire services and councils in setting up the regulator. Although the system is not what we would have chosen, we are confident that local government, the fire and rescue sector and the Health and Safety Executive are working closely to ensure the effective delivery of the new system and will continue to do so.
9.3. It is essential that the Bill provides regulators with sufficient time and flexibility to do this. Some of the practicalities of the new system – particularly those affected by issues around the capacity in the workforce, can only be ironed out through experience and piloting. Too rigid an approach to the timetable on implementing the new regime risks unwanted consequences, particularly in terms of the effect on costs, insurance and the housing market.
9.4. We agree that the regulator should be able to charge for its activities and be funded through cost recovery. However, the establishment of the regulator will not be covered by this approach and must be properly funded.
9.5. We are concerned that underfunding could delay the expansion of the scope of the higher-risk regime, leaving large numbers of dangerous buildings under 18 meters under-protected. We want to see a commitment to sufficient funding for this expansion. This is one of the reasons why we feel there should be a commitment to expansion on the face of the Bill.
9.6. The structure of the Building Safety Regulator means that its enforcement and inspection activity will, in practice, be conducted by council building control officers and fire and rescue services. This in itself is not something we object to, but it does raise two issues.
9.7. First, over the relationship between councillors and fire authority members who are democratically accountable for their services and the Building Safety Regulator which has separate powers to direct those services.
9.8. Second, we are concerned that local services may not be adequately funded for carrying out work on behalf of the regulator. We object to the model set out in the legislation:
9.8.1. Clause 33 of the Bill allows the Secretary of State to make regulations allowing the Building Safety Regulator to charge fees and recover costs. The levels may be set in regulations or by the Regulator (in the latter case the regulator will be expected to publish its charges).
9.8.2. Clause 14 allows the Secretary of State to make regulations allowing for Fire and Rescue Services and councils to be reimbursed for Building Safety Regulator work and it empowers the Secretary of State to decide what is an appropriate amount.
9.9. In our experience, where central government sets fees and charges nationally, cost recovery does not work and this results in a series of local shortfalls. One example is the planning system, where councils have been subsidising building developers by hundreds of millions each year because they must use the national charges set by the Secretary of State which do not cover their costs.
9.10. Similar issues also exist within the licensing fees regime. Fees under the Licensing Act 2003 have remained at the level set by the government when the Act first came into effect in 2005. Whilst the intention of the Act (in common with other licensing frameworks) is for fees to achieve full cost recovery for licensing authorities, concerns have been raised ever since the Act was first introduced that councils are experiencing a shortfall in licensing fee income relative to costs. Evidence from an LGA survey in 2016 appears to confirm that authorities are not covering the costs of administering the Act and are running a deficit. This deficit is estimated to cost a total of £10.3 million every year[ii].
9.11. We therefore do not want the Secretary of State to set the levels of charges. These should be worked out locally. This could be agreed between the Health and Safety Executive, councils and fire services. If the Health and Safety Executive is not satisfied that local regulators are charging correctly, it can raise this in its annual reports and request direction from the Secretary of State, so there are already safeguards in place.
9.12. If the regulator has to publish a set of charges, there is a risk that this will not allow for legitimate differences in costs between different council areas. Apart from regional differences, this may reflect the shortage of skilled fire engineers in the country which could prove more expensive in some places than others.
9.13. If the charging scheme set out in the Building Safety Bill does not allow local regulators to recover costs and this will act as a deterrent, undermining the policy objectives of the Bill.
9.14. We have raised these issues with the Government and HSE and continue to work constructively with officials to find the best possible approach
9.15. In addition to the question of fees and charges for day to day work, there will be considerable cost both to the Health and Safety Executive and to local regulators in setting up the Building Safety Regulator. This will include training and the provision of extra staff. The National Fire Chiefs Council has been given some funds to improve protection services and some of this has been passed to fire services. Councils have yet to receive funding for the improvements that will be required to building control services. It has also not been confirmed if the Health and Safety Executive will receive funding to set up the Building Safety Regulator.
9.16. The UK also needs to devote significant effort to upskilling the building industry and creating more trained fire safety engineers. If the culture change Dame Judith Hackitt envisaged is to take place, many in the building industry will need to acquire greater safety skills. There is also a chronic shortage of fire engineers and of professionals with the skills to make safety assessments of cladding systems, both within regulators and in private industry. This must be addressed moving forwards.
10.1. There are a number of separate building safety concerns that have significant financial implications for building owners and, if not protected from the costs, leaseholders. These include:
10.1.1. Non-ACM cladding replacement for buildings that do not receive funding from the £1 billion the Government has provided for this purpose. We expect the majority of work will not be funded.
10.1.2. Glass reinforced plastic composite fire doors, which are estimated to cost £750,000,000 to replace
10.1.3. Timber balconies, which were a key factor in fire spread at Samuel Garside House in Barking in 2019 that destroyed 20 flats.
10.1.4. Large Panel Systems (LPS) construction: evidence to date shows that historical records of strengthening work cannot be relied upon and that in some cases inadequate construction has now deteriorated unacceptably or adequate work has reached the end of its planned life. It is unclear whether all owners of LPS buildings are sufficiently aware of the nature of their building and the work that may be required to maintain it safely. Some of these buildings may require either demolition or very expensive repair.
10.1.5. Absence of sprinklers in older blocks: The Government is in the process of lowering the height at which sprinklers are required in new buildings, using changes to the guidance on building regulations in the Approved Documents. The LGA has previously called for funding to retrofit sprinklers in existing blocks, whose residents should enjoy the same safety standards that apply in new buildings. To date the Government has not provided this funding.
10.2. The LGA would like to see the establishment of a fund to cover remediation costs and recommends that stakeholders examine how the industry might contribute to such a fund. This should allow building owners to spend the money in the most cost-effective way to ensure residents safety, for example, by installing sprinklers.
10.3. We have concerns about the impact of Permitted Development Rights on building safety that apply to buildings well beyond the likely scope of this Bill. We have written to the Government seeking a discussion on this topic and raised the possibility that the Bill could be used to amend the building regulations to ensure buildings converted to residential use under Permitted Development Rights are safe for that purpose.