Written evidence submitted by the Fire Safety Action Group [BSB 138]
Comments for the Pre-legislative scrutiny of the Building Safety Bill
Introduction
The following comments are made by the Fire Safety Action Group (FSAG), which is a group of Approved Inspectors and professional building control practitioners. The FSAG have held meetings with and regularly engage with the NFCC Building Safety Programme Team, as well as MHCLG and HSE regarding the proposed regulatory regime changes. The purpose being to promote the building control profession and support the governments’ ambitions with the draft Building Safety Bill.
The fundamental aim of building control reform is to create a unified profession and a robust regulatory structure to ensure safer buildings.
The proposed changes within the Bill are a positive first step in achieving this aim but there are some key issues that should be addressed now in order to further support the robust changes needed.
The responses below address the specific questions of focus of the pre-legislative scrutiny committee as follows:
a) How well does the Bill, as drafted, meet the Government’s own policy intentions?
b) Does the draft Bill establish an appropriate scope for the new regulatory system?
c) Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety? Are the sanctions on those who do not meet their responsibilities strong enough?
Registered Building Inspectors
One of the first stages of the reform is the introduction of Registered Building Inspectors, and
to require Building Control Authorities and Registered Building Control Approvers to utilise
these Inspectors to oversee the relevant functions of the building control process.
Clause 44 - Section 58B of Building Act 1984
This is a robust proposal, although in our opinion it can be further strengthened. The draft content of the Bill does not make it mandatory for all building control professionals to become Registered Building Inspectors. This creates a potential scenario of a non-registered individual undertaking plans assessments and site inspections within a local authority or private sector company, with a Registered Building Inspector being used to oversee or audit such work, which does not achieve the consistency the reforms are aiming to achieve. The proposed competency framework being developed will become less robust and meaningful if there is a situation where those operating within a building control service are not all registered and assessed to undertake such a function, at all levels within the competency framework.
Clause 44 - Section 58B of Building Act 1984 - Explanatory Notes 397 & 398
We would propose that all building control professionals working within the industry are mandated to become Registered Building Inspectors should they wish to undertake a role within the building control profession, either with the Building Safety Regulator, a Building Control Authority or a Registered Building Control Approver.
This would give clarity to the industry and public, and provide a robust strengthening of the proposed competency framework for the building control profession.
Enforcement
The introduction of Compliance Notices and Stop Notices are welcomed.
Clause 42 - Section 35B & 35C of Building Act 1984
The provision of an efficient enforcement option within the Building Act will allow more control and is welcomed by the building control profession.
We would seek clarity in respect of the use of these new enforcement powers, as currently Section 48 of the Building Act 1984 does not permit the use of Section 35 enforcement powers where a valid Initial Notice is in place for building work.
Within the draft Bill, it would appear that Compliance Notices and Stop Notices are not limited to higher-risk residential buildings. If this is the case, then there is the potential for cumbersome enforcement procedures for building work carried out under an Initial Notice, which does not help one of the aims of the Bill. In fact, this would maintain two different paths for enforcement, which is in conflict with the aims of the Bill.
We would proposed that Compliance Notices and Stop Notices are available as enforcement tools to Registered Building Control Approvers. This will further strengthen the public safety element of the building control function and reinforce the ‘no profit above public safety’ tenet of the building control function. This provision would also reduce the financial burden on local authorities and the Building Safety Regulator in terms of potential enforcement for non-higher risk buildings.
We understand that the Building Safety Regulator will be the Building Control Authority and therefore enforcing authority for higher risk buildings, and as such the Building Act 1984 powers under Section 35 and Section 36 will be transferred to the Building Safety Regulator by means of a further amendment with the Building Act 1984.
Clause 36 - Section 91ZA & 91ZB of Building Act 1984
This links to the next issue.
Building Control Resource
It has been explained that the need for the Building Safety Regulator to engage with the relevant local authority building control service, is because the enforcement function rests within the Building Act 1984 as a statutory function of Section 91(2) of the Building Act 1984. This does not seem to be correct when referencing Clause 36, as noted above.
Clause 36 - Section 91ZA & 91ZB of Building Act 1984
The revisions proposed, in Clause 13, refer only to utilising local authorities and fire and rescue authorities in providing assistance to the Building Safety Regulator and make no reference to the building control resource and competence within the private sector. At a time when sufficient resources are scarce within the building control sector, the Governments’ objectives are potentially undermined by not utilising the available resources and competencies within the sector.
We would propose that Section 91ZA and 91ZB of the Building Act 1984 be amended to include the option for the Building Safety Regulator to utilise the resources available from a Registered Building Control Approver.
With the appropriate competency framework and other safeguards as proposed by the Bill, this would allow the Building Safety Regulator to have access to the best available competent resource in order to manage building safety as effectively as possible.
Clause 13 (1) - (9) Explanatory Notes - 189, 190
With the introduction of Compliance Notices and Stop Notices as enforcement tools for higher-risk buildings and the Building Safety Regulator being the relevant Building Control Authority for such in-scope buildings, we would contend there is no reason why appropriate resources from the private sector cannot be utilised to support the role of the Building Safety Regulator.
Sanctions & System
One of the key elements of unifying the building control profession is to ensure the operational systems of all building control bodies are aligned. The current system is not aligned sufficiently to ensure consistency and can be strengthened further than the draft Bill proposes.
We would propose that the Building Control Performance Standards be replaced with a mandatory operational guide for local authorities and Registered Building Control Approvers which reflects the minimum expected levels of operational performance, service delivery and provision of statutory documentation required of a unified building control profession.
We would propose the following, by way of example:
a) A re-alignment of terminology, removing differences such as ‘Plans Approval’ and ‘Plans Certificate’ and ‘Completion Certificate’ and ‘Final Certificate’;
b) A requirement for all building control bodies to produce a ‘Plans Assessment Report’;
c) A requirement for all building control bodies to consult with the Fire and Rescue Service (see below)
With such operational consistency in place, there would be clarity in respect of sanctions applicable against either the local authority, Registered Building Control Approver or Registered Building Inspector.
The draft Bill also details potential sanctions against Registered Building Inspectors. In our opinion, the lack of mandatory registration for all professionals practising within the building control profession does not allow effective control of the profession.
We would also propose that with such an operational guide in place, there would be no issue in the Building Safety Regulator utilising either local authority or private sector resources, and thus utilising as much of the limited building control resource as possible.
Independent designated / delegated body
With reference to the eleven recommendations of the Future of Building Control document, which is supported by both LABC and ACAI, we are of the opinion that the Building Safety Regulator is not sufficiently independent to regulate the building control profession.
We would therefore recommend the creation of an independent designated or delegated body to support the work of the Building Safety Regulator. This body would be able to regulate the whole building control profession. This aligns with the work of the Architects Registration Board, who support the work of the RIBA, in an independent capacity.
Regulatory Reform (Fire Safety) Order consultation
The government are currently seeking views on changes to the Fire Safety Order, updating the scope and requirements to match the recommendations of the Building Safety Bill proposals.
Key areas of the consultation document relate to the Building Control process, including consultations, Plans Certificates, the provision of information and Regulation 38 fire safety information.
One issue that needs to be addressed is the alignment of the statutory consultation process between a building control body and the fire service. There are currently differences between local authorities and the private sector.
The Building Safety Bill puts forward significant changes to the Building Act 1984. We believe there is an opportunity to align the building control process for consultations under the Fire Safety Order to ensure the best possible level of consistency for the new regulatory regime.
We would advocate that Building Control Authorities (the Building Safety Regulator and local authorities) and Registered Building Control Approvers should be subject to the same statutory duty to consult with the fire service at key points in the design and construction process. The current system should be amended to facilitate this, by amending the Building Act 1984 to include these obligations clearly and concisely at specific stages for all projects covered by the Fire Safety Order.
The Fire Safety Order consultation also mentions potential options for Plans Certificates. These are exclusive to the private sector route, and again we see an opportunity to align the process for consistency. In our view Plans Certificates and Plans Approvals are limited in purpose. They only give a snapshot at one time, and invariably designs and details are amended through the build process. The ‘golden thread’ principle will cover this within the gateway and approval process for higher risk buildings.
In our view it would be better to define a specific stage for a statutory fire service consultation, when the submitted details indicate compliance in respect of fire safety provisions in the opinion of the building control body. With the support of guidance on when a re-consultation would be required, such as a significant change in layout or specification, this would give a robust method of ensuring both the building control body, and the fire service comment at an appropriate time, allowing effective communication with the client. This should always be prior to works commencing on site.
This can be supported by the adoption of a standard set of consultation documentation, and a pro-forma to explain the rationale of approval by the building control body. This standardised approach to consultations by the public and private sectors would have enormous benefit to the process, and allow the fire service to respond in an equally consistent manner.
In addition, in our opinion, the process should include a mandatory consultation at pre- completion stage, which should include details of the fire safety information, sign off documents and commissioning information, and including a statement by the responsible
parties that all information has been passed to the client. This could also include details of the duty holder / appointed person who will be responsible for the building post-completion.
This should be undertaken prior to the issue of a completion / final certificate, with a set time period so that the developer and client are aware they need to ensure key elements are in place in a timely manner. The process should be planned accordingly and this proposed consultation should be built into the construction programme.
Summary
We support the proposed changes included within the draft Building Safety Bill. There are a number of fundamental questions regarding processes and procedures to be dealt with as the structure of the regulatory system is developed.
We believe the proposals we have suggested in this document will add to the government’s objectives and provide further support to the Building Safety Regulator and the building control profession, resulting in safer buildings.
We would be more than happy to be involved in future discussions and working groups to help facilitate the development and implementation of the new regulatory regime and supporting structure.