Written evidence submitted by London Councils [BSB 208]
London Councils is a cross-party representative body for all 32 London boroughs and the City of London Corporation. As such, our members have a direct interest in the outcome of this inquiry from the perspective of a social landlord, housing and planning authorities, and as custodians of the safety and prosperity of local communities throughout the capital.
London Councils welcomes the opportunity to submit evidence to this committee and continue to play its part to ensure buildings across the capital are safe for London’s residents.
Since the Grenfell Fire tragedy, London Councils and the London Housing Directors’ Group have worked with government and other stakeholders to shape the Building Safety Bill (BSB) in such a way that delivers real change that is practicably implementable as well as effective and ambitious. We have also called for a ban of dangerous cladding systems (both ACM and non-ACM), lobbied for funding commensurate to the task to hasten delivery whilst protecting leaseholders from excessive service charges, and worked to expediate the remediation of dangerously clad blocks in a safe, sustainable way.
The BSB is a welcome publication, but it is just one part of the wider regulatory framework which needs to be reviewed. The implementation of the Fire Safety Bill, further secondary legislation, and the review of the Approved Documents are all aspects of the new regime which must work together to reform building regulations to the required standards.
We hold to our original position that creating new legislation to address gaps and discrepancies in existing legislation is not the best long-term solution for the housing sector. What is needed is a full review from first principles to develop a new clear and decisive framework which mirrors the full life cycle of a building, addresses the gaps and duplication in regulation, clarifies roles and responsibilities, and provides a sound basis to enable councils and other land owners to create safe and sustainable housing fit for now and the future.
We believe that the BSB has the potential to broadly meet its objectives in strengthening the existing regulatory system to ensure that new and existing buildings are built and maintained to safer standards. In order to achieve this however, there are some critical issues which must first be addressed before the Bill is enshrined in law. These issues are illustrated below in our key messages, followed by detailed responses to the committee’s call evidence.
Scope. We welcome the ambition of government in lowering the threshold from the 30m threshold in the Hackitt recommendations to 18m for multi-occupancy residential buildings. We question however, the rather arbitrary use of the 18m threshold.
Buildings under 18m have proved to be a real danger to life with a series of recent sub-18m building fires demonstrating this e.g. the Cube student hall of residence in Bolton, the fire at Samuel Garside, Barking, and the fire in Worcester Park. We again reiterate that government should seek to implement the legislation based on the overall risk profile of a building, not purely based on an arbitrary height measurement.
In the absence of this risk-based approach, we believe the height threshold should reflect at least the current capabilities, and recommendation of the London Fire Brigade (LFB) and apply to all multi-occupancy residential buildings above 11m in height. We have also stated previously, and reaffirm that call here, that the scope of what constitutes a multi-occupied, high-risk building, should include all buildings where vulnerable people sleep (excluding private individual dwellings), such as hospitals and care homes which are often less than 18m high.
Transition period – there is still little clarity on how the responsibilities established in the BSB will be phased in. The raft of new expenses and responsibilities that councils will be subject to under the BSB are simply not deliverable for local authorities without corresponding new burdens funding, and a phased roll-out of the new regime.
We strongly recommend a pragmatic approach whereby a minimum of a 5-year transition period is put in place, working towards the Bills full implementation in a phased approach based on a combination of height and risk profile. Without this phased approach, the successful implementation of the new building safety regime is simply undeliverable.
Building owners need sufficient time and financial resources to deliver the required safety improvements, and the sector more broadly needs sufficient time to upskill and develop capacity to service demand for technically competent professionals operating in this area.
The leaseholder access problem. Gaining access to leaseholder owned properties in multi-occupancy residential buildings is a key concern of London Councils. The Building Safety Manager (BSM) and/or the accountable person will not be able to holistically manage a building without robust powers to enter, inspect, and enforce action where appropriate. Whist this is addressed in the BSB for immediate safety concerns, the ability to manage the safety of an entire building requires the powers to enter and install fire safety improvements across all of a block’s homes.
A recent High Court ruling against Oxford County Council in Piechnik v Oxford CC stated that the council does not have the right to access a leaseholder property in a social block to install fire safety improvements. This means it looks increasing like the only route to resolving this issue and curtailing this hindrance to remediation work is through new tenant and landlord legislation. We do not believe that this has been adequately addressed in the Bill.
Compounding these concerns are inadequacies of the Government’s £1bn Building Safety Fund (earmarked for the remediation of non-ACM external wall systems) which has been constructed in such a way that it excludes social sector landlords - unless the remediation costs threaten the financial viability of the provider or the HRA. This is an extremely high bar to prove and will result in councils making tough choices on scaling back spending in other vital areas i.e. new social housing, and refurbishment and renovation works.
Permitted development rights (PDR). London Councils is strongly opposed to the government’s recently announced extension of Permitted Development Rights. To date, PDR has undermined boroughs’ management of development in their areas and produced sub-standard housing in unsuitable locations. The BSB exempts PDR developments from Gateway One which is extremely problematic given the propensity of these buildings to have safety issues. This must be amended if the BSB is to make ‘all’ buildings in scope safe. We cannot compromise safety for the pace and scale of development.
The skills gap. There is a very real deficit of fire safety expertise which is creating an inflated labour market in which councils are unable to compete. This is causing significant delays in delivering safety improvement programmes and enabling councils to prepare for the new building safety framework. This also risks creating a further legacy of unsafe buildings, due to a continuing lack of competence across designers, contractors and client organisations. Research and an overriding skills creation strategy are urgently needed to redress these resource deficiencies; especially as the building safety regime, rightly, brings more buildings into scope and significantly increases councils’ duties.
Full response to committee criteria
How well does the Bill, as drafted, meet the Government’s own policy intentions?
The overriding policy intention is to achieve a fundamental reform of the building safety regime that will ensure that new and existing buildings are built and maintained to safer standards. Specifically, Government is committed to implementing the recommendations of Dame Judith Hackitt’s review and learning the lessons of the Grenfell Tower fire.
As drafted, the Bill does not fully address a number of key issues which will hinder the ability of social landlords to safely manage their buildings. The key issues are mentioned above, and are fundamental to a successful new building safety regime. Not least of these are the need for a phased transition period, and an adequate new burdens funding. Traditionally, new burdens funding to local authorities rarely meets all the additional costs of the new burden. With council budgets stretched to breaking point, and resident safety the primary objective, Government must break this cycle and properly resource the implementation of the BSB.
The PDR exemption for gateway one, and the effects the recent planning white paper will have on Gateway One are also key issues which warrant some further analysis now.
1) Gateway One exemption for PDR. London Councils is strongly opposed to the government’s recently announced extension of PDR. To date, PDR has undermined boroughs’ management of development in their areas and produced sub-standard housing in unsuitable locations.
This latest expansion of PDR allows upward extensions to create new homes above detached commercial and mixed-use buildings, provided these developments are limited to 30m. However, this exceeds the 18m threshold for increased building safety standards and we note that other new PDR upward extensions can be built to just below the 18m threshold, all without proper scrutiny by local boroughs.
The BSB states that where a planning application is not currently required (e.g. because it has been permitted by the General Permitted Development Order 2015), the requirements of Planning Gateway One will not apply, and development proposals will proceed straight to Gateway Two. With the known deficiencies in PDR developments, it seems highly counterproductive to exempt them from the full gateway process. There is no logic to this, sacrificing safety standards for the sake of building at pace and scale is surely what we need to avoid? As it stands, the BSB will not make ‘all’ buildings in scope go through the full gateway process as intended, as such, does not meet its own policy intention.
2) Planning White Paper – removal of Gateway One. The reforms envisaged by the Government’s Planning White Paper remove the existing planning application process for individual buildings in the proposed ‘growth’ and ‘renewal’ zones (provided the individual scheme proposed conforms to Local Plan standards); we assume that Gateway One is also removed, for all such buildings. In the absence of a planning application stage for these buildings, 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.
The existence of Gateway One means that developers have to engage with the regulator at a very early stage. This is a key plank of the gateway system and reflects international best practice. The three gateways provide the regulator with an opportunity to ensure new buildings meet the right standards including issues such as Fire and Rescue Service (FRS) access, water supply and the effect on neighbouring buildings. Urgent clarity is required around this issue and the PDR exemption.
Does the draft Bill establish an appropriate scope for the new regulatory system?
No, we do not believe that it does. Height is one factor in determining risk e.g. the vulnerability of residents; the means of escape; fire alarms; building use, and the type and design standard of buildings to name but a few. We believe a more sophisticated approach to assessing risk is perfectly practical and should be adopted; not least to avoid scarce resources being spent on safe buildings that fall within such a broadly defined scope.
In the absence of this risk-based approach, we acknowledge that height is one risk factor, and we question the rather arbitrary use of the 18m or more than six storeys threshold (whichever is reached first). In our view it should reflect at least the current capabilities, and recommendation, of the London Fire Brigade (LFB), and apply to all multi-occupancy residential buildings above 11m in height. We have also stated previously, and reaffirm that call here, that the scope of what constitutes a multi-occupied, high-risk building, should include all buildings where vulnerable people sleep (excluding private individual dwellings), such as hospitals and care homes, which are often less than 18m high.
Fears over recent low-rise fires such as the Cube student hall of residence in Bolton, the fire at Samuel Garside, Barking, and the fire in Worcester Park, seem to have catalysed action on buildings under 18m e.g. the Sprinklers and Other Fire Safety Measures consultation response has been published with an intention to lower the height of new builds requiring sprinklers to 11m. Subsequently the review of the ban on combustible materials consultation was published with a recommendation that the ban on combustible External Wall Systems (EWS) be extended to cover buildings over 11m. There is also a pilot pending to begin the data collection of EWS data on buildings from 11m-18m.
London Councils has been lobbying for a broadening of the scope for nearly three years, and while we acknowledge and welcome this ‘momentum’ towards that end, we cannot understand government’s position on this nor fully endorse a BSB that excludes so many potentially dangerous buildings. Giving the Secretary of State powers to amend the definition of a higher risk building through affirmative regulation is a half measure that can be avoided by explicitly stating the intension and timeline to do so.
Putting a sufficient transition period in place to allow for the additional burdens to be phased in over time, and providing adequate funding and a national programme to address skills shortages, would militate against the deleterious effects of widening the scope.
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?
Accountability and sanctions
The systems of accountability and sanctions including the increase of the time limit for prosecution for contravention of building regulations from two to ten years, are welcome changes.
Further to be welcomed is the change to prosecutions. If a corporate body is found to have committed an offence but is regarded that it was committed with “consent or connivance” of a director, that director may also be prosecuted. However, as London Councils stated in its response to the Building a Safer Future consultation, we believe an individual dutyholder should be identified who can be held to account.
Most boards will have a named H&S portfolio owner and most Executive teams will also have a named Executive Director responsible for H&S. The concept that there is a “controlling mind” is well established, as such we do not believe that the identification of a named dutyholder for building safety is out of step with current practice. As per H&S legislation, this would be the Chief Executive for Councils.
The Building Safety Manager’s role
The Bill also places statutory obligations on the accountable person that will help to promote a strong partnership between residents and the BSM. There will also be a technical aspect to the BSM role of compiling and managing safety case submissions. These are two very different roles which will be difficult to combine into one position. What exactly the BSM’s responsibilities will be, and critically what ratio of BSM to buildings will be permitted is critical to the success of the role, for councils advanced preparations, and the design and implementation of training courses for the role. These factors are not clear from the BSB or the explanatory note and need addressing in the context of the skills gap for building safety roles.
Leaseholder access/ residents’ responsibilities
Alongside this, residents will have clear legal responsibilities to keep in repair and proper working order any relevant resident’s items, take reasonable steps to avoid damaging any relevant safety item, and comply with a request made by the accountable person in connection with their duty to assess safety risks in the building and take steps to prevent serious harm.
This is a positive change; however, it is very limited in its scope. Gaining access to leaseholder owned properties in multi-occupancy residential buildings is a key concern of London Councils. The Building Safety Manager (BSM) and/or the accountable person will not be able to holistically manage a building without robust powers to enter, inspect, and enforce action where appropriate. As stated in our key messages, this needs to be urgently addressed through legislation.
Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?
The creation of a resident’s board for the regulator is a positive move which will give residents’ a voice at the centre of the regulatory mechanism and assist in driving new methods of engagement across the sector. Furthermore, the removal of the democratic filter from the complaints process is positive and something that London Councils has called for in our response to the Social Hosing Green Paper. Whilst a sound principle, in practice it is flawed due to the lack of accountability of all registered providers to elected local officials, and serves predominantly to slow the complaints process down.
There are two caveats to this however:
1) There must be an adequately funded housing ombudsman in order to deal with the level of complaints directed to them; additional resourcing for the housing ombudsman has yet been announced, but is essential for a well-functioning complaints process.
2) Roles and responsibilities must be clearly defined with a lead authority identified, and clearly communicated to stakeholders as such. The consequence of not defining these roles will be complaints sent to multiple authorises: the Social Housing Regulator, The Housing Ombudsman, the Building Safety Regulator or the new build housing ombudsman proposed in the BSB.
Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed?
We are concerned that the inappropriate scope of the higher risk regime may mean that some dutyholders will face costs that are not justified by the level of risk their building poses. Concurrently, many buildings that fall out of scope but are high risk for reasons other than height will be exempted from the charge. These costs may impose too great a burden on managing agents or freeholders which could be passed on to leaseholders, further distorting the housing market.
Leaseholders should not be left to pick up the tab for excessive charges for matters beyond their control, and in which they are blameless. We need certainty over what charges are the result of years of inadequate regulation which must be borne by the government, and which are the result of negligent building management which must be borne by the building owner or responsible contractor.
More clarity around service charges is welcome, however, the leaseholder system in general is deeply flawed. Whilst residents have the right to organise and appoint a new service provider, it is an arduous task that most residents, leaseholders or freeholders do not embark upon unless their services are very poor value for money; this new charge risks further entrenching this ‘bad’ system, and exploiting leaseholders.
Does the Bill improve the product testing regime in a way that will command the full confidence of the sector?
The product testing regime to date has proved expensive, with a lack of market choice, and no effective recourse for manufacturers and their customers for errors made in the testing or test design process. This is demonstrated in the widespread issues found in fire doors which have proved an incredibly expensive and resource intensive process for London boroughs to rectify; despite blame laying firmly at the feet of testing processes and manufacturers. The Bill does not address these issues at a structural level and the sector has lost confidence in the testing standards and product certification process more broadly.
Whilst we welcome and support the use of third party certification schemes and would support the requirement for these schemes to become a mandatory requirement under Building Regulations, our experience demonstrates that even third party certification schemes are not without fault and registers are slow to respond to complaints and take punitive action against members.
Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?
The Building Safety Regulator
Whilst the BSB departs from the Hackitt recommendation for a joint competent authority, we are encouraged by the close working relationship the HSE is developing with local government and the FRS in its approach to setting up the regulator. This collaborative start must now continue with joint working during transition into the BSB’s full implementation to assist councils in meeting new system requirements and ensuring the Building Safety Regulator fully understand the wider regulatory framework that councils operate in.
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 fully funded. These initial set up costs should also extend to local regulators such as councils and the FRS e.g. for training and recruitment, upgrading of digital systems etc. The National Fire Chiefs Council has been allocated some funding to improve protection services; councils have yet to receive funding for the improvements that will be required to building control services.
Cost recovery
There is a provision in the BSB allowing for FRS and councils to be reimbursed for work relating to the regulator. This amount is to be determined by the Secretary of State. In the experience of London boroughs, where central government sets fees and charges nationally, cost recovery does not work, and the result is a series of local shortfalls. The most obvious 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.[1]
The FRS and Local government should be able to set charges locally, that adequately reflect local costs and can operate on a full cost recovery basis. Failure to provide an adequate funding regime from the outset, will not allow local regulators to recover costs, and therefore compete in the labour market by recruiting and retaining the skilled people needed for the new regulatory regime. This would undermine the regulatory objectives.
Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?
There are three key areas in which the BSB could strengthen the new building safety regime to facilitate its success:
1) Risk prioritisation. There are no substitutes for a holistic, whole building, risk-based approach to building safety.
This means that a proportionate and risk based methodology needs to be implemented. For example, buildings over 18m are not necessarily high risk, just as low-rise buildings are not always low risk.
We need to develop a more effective process and proportional approach to the elimination of risk for low risk buildings. Building-owners should not be unnecessarily burdened where the risk is low or negligible. This would allow the limited resources of the regulator to be directed where it is most needed.
Broadly speaking, it would be advantageous to approach fire risk assessment and mitigation in buildings using a first principle approach to deliver a holistic risk management model. For example, should a building be found deficient in one area, can it be mitigated by strengthening the fire safety infrastructure in another area i.e. installing an AFSS?
2) Scarce resources – London Boroughs are stretched with the demand on their resources for building safety works, the costs of the Covid-19 pandemic, a right to buy policy that systematically drains social housing assets, a housing crisis, requirements to provide carbon neutral homes by 2030, and the legacy of a 5 year social rent cut/freeze.
Furthermore, there is a very real deficit of fire safety expertise which is creating an inflated labour market in which Councils are unable to compete. This is causing significant delays in delivering safety improvement programmes and enabling councils to prepare for the new building safety framework. This also risks creating a further legacy of unsafe buildings, due to a continuing lack of competence across designers, contractors and client organisations.
Research and an overriding skills creation strategy are urgently needed to redress these resource deficiencies; especially as the building safety regime, rightly, brings more buildings into scope and significantly increases councils’ duties.
3) The leaseholder access problem. Gaining access to leaseholder owned properties in multi-occupancy residential buildings is a key concern of London Councils. The Building Safety Manager (BSM) and/or the accountable person will not be able to holistically manage a building without robust powers to enter, inspect, and enforce action where appropriate. Whist this is addressed in the BSB for immediate safety concerns, the ability to manage the safety of an entire building requires the powers to enter and install fire safety improvements across all of a block’s homes.
A recent High Court ruling against Oxford County Council in Piechnik v Oxford CC stated that the council does not have the right to access a leaseholder property in a social block to install fire safety improvements. This means it looks increasing like the only real route to resolving this issue and curtailing this massive hindrance to remediation work is through new legislation.
September 2020
[1] https://www.local.gov.uk/sites/default/files/documents/LGA%20Briefing%20-%20Town%20and%20Country%20Planning%20 %28Fees%29%20Regulations%202017%20-%20House%20of%20Lords%20-%2006%2012%2017.pdf