Written evidence submitted by London Fire Brigade [BSB 270]
London Fire Brigade is London's fire and rescue service - one of the largest firefighting and rescue organisations in the world and we are here to make London a safer city. Decisions are made either by the London Fire Commissioner (the statutory fire and rescue authority for Greater London), the Mayor of London or the Deputy Mayor for Fire and Resilience. A Fire, Resilience and Emergency Planning Committee of the London Assembly holds the Commissioner, Mayor and Deputy Mayor to account.
London Fire Brigade (LFB) welcomes and supports the proposals contained in the draft Building Safety Bill (the draft Bill). Officers participated in Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety and have worked with Government and others on aspects of the development of the proposals contained in the draft Bill and other legislative changes it will bring forward.
The building safety regime for new builds, conversions and renovations that has operated for many years has not been fit for purpose. Robust action to remedy this is required with stringent oversight of all aspects of the industry and its practices being put into place.
In our view, the Bill as drafted goes a long way towards meeting the policy objective of a robust regime. However, both in isolation and when viewed together with the Fire Safety Bill, the ongoing Home Office consultation on fire safety, and the existing Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order), there are a number of matters that require further thought, greater clarity or explanation. We do however recognise that the draft Bill is primarily enabling legislation under which a number of detailed statutory instruments can be expected.
We are pleased to address the Committee’s questions, in the areas where we are best equipped to do so.
1: Does the draft Bill establish an appropriate scope for the new regulatory system?
Scope of the regime and initial application
1.1 Clause 19 sets out the intent to define high risk, now and in the future. The consultation requirements appear appropriate and we particularly support the future flexibility. We have continued reservations about how higher risk will initially be defined and draw the Committee’s attention to point 228 in the Explanatory Note (EN) which sets out the proposed definition in more detail, in particular the wording around height condition. While this may be the most simple application, we have said repeatedly that a height threshold is too blunt an instrument to fully account for risk. However, we would recommend the height condition, noting our reservation regarding height thresholds, should consider the height or number of storeys, whichever is reached first. Example 1 under EN 230 suggests this yet EN 228 appears to give the option rather than direction.
1.2 EN 222 states that the draft Bill adopts a broad definition of “building” but does not fully explain the definition and it remains unclear what defines a building. It is uncertain whether this would include ‘fire separated parts’ (for example, single floor commercial premises at the base of a tall residential tower), the overarching structure and all connected parts (for example, the entirety of several towers over a common shared basement but which only have a single tower over 18 metres).
1.3 It is also unclear why high risk occupancies such as residential care homes are excluded (as stated in EN 228). Our recommendation is that occupancy should be a factor and that care homes should be included at an early stage.
1.4 We also note the exclusion of temporary accommodation. There is ongoing confusion caused by terms such as ‘aparthotel’ which blur the lines between what is temporary accommodation or otherwise. It is unclear whether short term rental properties such as holiday letting (for example Airbnb, and similar rentals) would be excluded even if the whole block is used for that purpose.
1.5 Terms such as ‘student accommodation’ will need to be defined elsewhere. We are assuming these could not be taken from Approved Document B to the Building Regulations as this section is clearly in occupation and separated from the Building Act section. Furthermore, if one room was rented to a student it is unclear if that bring the entire building in scope.
Mixed use buildings
1.6 The position for mixed use buildings remains unclear. This is a twofold issue. In the first instance, the intent expressed by Dame Judith Hackitt’s Independent Review is that the building should be subject to a ‘whole building approach’ which is noted in Example 1 of EN 764 in relation to Clause 102 (Cooperation and coordination). Clause 102 requires cooperation and coordination between responsible persons under the Fire Safety Order and Accountable Persons under the draft Bill. This indicates two separate regimes applying to different parts of the same building and not a whole building approach. The second element is that there appears to be no duty in either the draft Bill, the consultation on the Fire Safety Order or the Fire Safety Bill to require any one Accountable Person or Responsible Person to take the lead in co-coordinating response and implementation to the legislative requirements. This is already seen as an issue in multi-occupancy buildings. We would suggest that where parts of the premises are subject to the requirements of the draft Bill that the Accountable Person should be charged with the duty to co-ordinate, as the information from others and their actions will be relevant to the safety case for the building as a whole.
Higher risk buildings
1.7 Example 1 of EN 526, in relation to Clause 65 of the draft Bill, suggests that the Building Safety Regulator (the Regulator) will set out in regulations what information will be included on the building assurance certificate. The draft Bill itself appears to say this is the Secretary of State.
Use of terms
a) “Relevant persons”
1.8 The term ‘relevant person’ was introduced by the Fire Safety Order where it is defined in Article 2 as:
(a) any person (including the responsible person) who is or may be lawfully on the premises; and
(b) any person in the immediate vicinity of the premises who is at risk from a fire on the premises
The draft Bill also proposes to use the term and we draw attention to the definitions set out in Clause 11(7) and Clause 38 which amends the Building Act 1984 by inserting a new section 5B – General duties. Consequently different definitions apply within the draft Bill at different points and at different stages of the lifespan of the premises according to which regime is being considered. This is likely to hinder understanding and accountability.
1.9 The draft Bill would make the Building Safety Regulator the regulator for building regulations for premises and those will become part of the lifespan coverage of the premises by aspects of the regime. However the definition of building used in Clause 35 of the draft Bill that:
“building” means any permanent or temporary building in England except a building of a prescribed description’
does not appear to correlate well with the definition used in the Building Act 1984 which forms part of the overall regime. Section 121 of the Act reads as follows:
Meaning of “building”.
(1)The word “building”, for the purposes of—
(a) Part I of this Act, and
(b) any other enactment (whether or not contained in this Act) that relates to building regulations, or that mentions “buildings” or “a building” in a context from which it appears that those expressions are there intended to have the same meaning as in Part I of this Act,
means any permanent or temporary building, and, unless the context otherwise requires, it includes any other structure or erection of whatever kind or nature (whether permanent or temporary).
(2) In subsection (1) above, “structure or erection” includes a vehicle, vessel, hovercraft, aircraft or other movable object of any kind in such circumstances as may be prescribed (being circumstances that in the opinion of the Secretary of State justify treating it for those purposes as a building).
(3) For the purposes mentioned in subsection (1) above, unless the context otherwise requires—
(a)a reference to a building includes a reference to part of a building and
(b) a reference to the provision of services, fittings and equipment in or in connection with buildings, or to services, fittings and equipment so provided, includes a reference to the affixing of things to buildings or, as the case may be, to things so affixed.
1.10 Clarity and consistency of definition throughout the lifecycle of a building, including temporary elements such as scaffolding used during construction or refurbishment, would assist practitioners and enforcers.
2: Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety?
2.1 Generally speaking it would appear to be robust and realistic. However the interrelationship between regimes remains a probable issue that does not appear to yet be fully addressed and would benefit form greater clarity.
Accountable Person/Responsible Person
2.2 The term ‘Accountable Person’ as set out in Clause 67 in the draft Bill appears to differ from the term ‘Responsible Person’ as defined under the Fire Safety Order. It remains unclear what the interaction between the Fire Safety Order including amendments and the draft Bill is, whether there are any conflicts between the expectation of the Responsible and Accountable Person duties, and whether there is any confusion over the enforcement duties. What does appear to be missing is the identification and appointment of a person to coordinate across the duties and in multi use buildings where different areas, floors, or parts of floors may come under one or both regimes and/or have different uses.
Regulator’s power of veto over appointment of building safety manager
2.3 Clause 68 of the draft Bill allows the Regulator to veto the appointment of a Building Safety Manager by an Accountable Person if the Regulator considers that nominee not to be a suitable person for the role. The provision further requires that “Before deciding whether to veto an appointment the regulator must consult the relevant fire and rescue authority and such other persons as it considers appropriate”.
2.4 If, as it appears, this a requirement to consult the fire and rescue authority on a routine basis before a decision about suitability is reached, then this is likely to have significant resource implications for fire and rescue authorities and given the volume of buildings in the capital, particularly for London Fire Brigade.
2.5 Concern is also raised about potential liabilities for consultees in this regard if a ‘bad’ reference is given. It is also unclear on what basis a fire and rescue authority would be able to offer an authoritative view about prospective Building Safety Managers and we would also highlight that consultation with the fire and rescue authority for the area in which a building is situated may be of little benefit if the nominee has previously worked in another area of the country.
2.6 We would welcome robust guidance on the use of this provision and ideally a limitation of potential liability for statutory consultees.
Duties relating to building safety risks
2.7 Clauses 16 and 72 of the draft Bill set out provisions relating to building safety risks. As is the case with the Fire Safety Order, Clause 16 requires assessment of a fire as a risk, but that is not limited to a fire originating within the building. It is unclear how far this duty extends, but it is assumed that it includes the building’s occupants being affected by any fire, including smoke and/or heat from a fire remote from the building.
2.8 Clause 73 of the draft Bill sets out the duties of the Accountable Person as taking ‘reasonable steps’, whereas Clause 72 sets out in detail their duties to undertake ‘assessment’ of building safety risks. In this regard the wording of these two clauses of the draft Bill appears intentionally different. The explanatory notes regarding clause 73 describe it as an ‘assessment’ and appears to be expecting more in 564 that the draft Bill wording is expecting. We recommend the draft Bill reflects the expectation of the explanatory notes for Clause 73.
2.9 Our reading of Clause 74 is that the requirement for the safety case report will apply to all existing ‘in scope’ buildings as well as any new builds, so this cannot be amended by the Regulator’s guidance. The guidance will therefore be key in determining what assessments are necessary and what reliance, if any, can be placed on a previous assumption of compliance with Building Regulations. There would be benefit in this guidance, when written, that would specifically cover contingency arrangements should vital systems not be available (for example, the many tall single stair buildings with only a single firefighting lift).
3: Are the sanctions on those who do not meet their responsibilities strong enough?
3.1 We note the use of different appeal bodies between the building control body’s Compliance Notices and Stop Notices (First Tier Tribunal Lands Chamber) and Enforcement Notices and Prohibition Notices under the Fire Safety Order (magistrates court). Primarily this is accepted as appropriate use of court time. However, we would ask that consideration be given, in the vein of good use of court or tribunal time, to clarity where notices are served by both enforcing bodies (such as at an occupied block undergoing refurbishment) so as to avoid separate parallel proceedings or the potential for different findings by the court and tribunal that require further appeals to reconcile conflicting outcomes.
Service of compliance notices
3.2 We have noted that the proposed time period during which the new compliance notices can be served under the buildings Act 1984 (new clause 35B(7) as inserted by Clause 42 of the draft Bill) is not even as long as the usual contractual snagging period for a new building. This does not appear equitable or in the interest of safety.
Consistency of penalty
3.3 Our more substantive concern is the apparent lack of consistency of penalty for equivalent offences between the Building Act 1984 (as proposed to be amended), the Fire Safety Order and the proposed substantive regime of the draft Bill.
3.4 Under the proposals a failure to comply with a Compliance Notice or Stop Notice may result in up to 12 months imprisonment or a fine or both on summary conviction, and 24 months imprisonment on conviction on indictment. Once the premises come into use and the Fire Safety Order becomes the primary enforcement mechanism, the maximum sentence on summary conviction for a failure to comply with a notice or a substantive provision is limited to a fine. Only if sentencing is then committed to Crown Court can a greater sentence be imposed - 2 years imprisonment or a fine or both. It is not clear why this distinction is being made. A failure to comply with a draft Bill requirement at a building in scope will carry the same penalty as the Building Act provision. Similarly the proposed offences of impersonating an inspector and obstruction of an inspector are not necessarily consistent with the equivalent Fire Safety Order offences. Again if this is intentional it is not clear why.
3.5 We suggest that it would benefit public safety and compliance if consistency in sentencing powers for equivalent offences across the range of legislation were achieved. This would also serve to avoid a risk of inappropriate ‘horse trading’ between authorities when prosecution is considered according to who has the greater penalty available in court.
3.6 English law does not have time limits on prosecution of serious offences. We question why time limits will continue to apply to the contravention of the building regulations when the consequences can be equally serious as offences under the Fire Safety Order and health and safety legislation. If such an anomaly cannot be resolved through the draft Bill, we would support the provision in Clause 42 to increase the statutory time available for Building Act 1984 offences to be considered. However it is unclear why 10 years has been chosen when civil action (insofar as damage is caused) can be taken for 12 years.
3.7 A particular enforcement issue we have experienced in relation to the built environment is the use of parent and child companies. This covers a developer opening a subsidiary company to be responsible for a new development or refurbishment. That company is then closed down after completion of the project - our experience is that this is often around two years after completion when the contractual ‘snagging’ period comes to an end. At this point the doctrine of the corporate veil applies and the parent company rarely has any ongoing legal liability for the premises or remediation. This can significantly reduce the penalties a court may impose if a prosecution is taken. More importantly necessary remediation can often be delayed due to processing of insurance claims (if accepted by the insurer) or leave leaseholders liable for all costs resulting from negligent work by developers and their contractors. We suggest this issue should be considered and addressed by the draft Bill to ensure that for at least for the period of civil liability under statutory limitations, parent companies and directors individually can be held to account for failings of subsidiaries they created.
4: Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?
Hierarchy of oversight and directions
4.1 Historically, health and safety, fire safety and building regulations have been delineated as separate but linked governmental policy subjects. Consequently they have often, as they are now, split as policy areas across more than one government department: Home Office; Ministry for Housing, Communities and Local Government; and the Department for Work and Pensions. In the context of the draft Bill this causes some concern for the effective operation of the new regime.
4.2 Clause 13 of the draft Bill provides for the Building Safety Regulator to request fire and rescue authorities to undertake work to facilitate the Regulator’s functions. If needed the Regulator can request the Secretary of State to direct that this assistance be provided. It is, however, unclear which Secretary of State the Regulator is expected to approach. At the same time, fire and rescue authorities must have regard to and follow the national framework which is approved by Parliament, and in doing so have regard to guidance (Integrated Risk Management Planning Guidance and Enforcement guidance for the Fire Safety Order) from the Secretary of State at large, though at present the policy holder is the Home Secretary. In London the Mayor of London has power to direct the London Fire Commissioner in the exercise of his/her duties as a Fire and Rescue Authority. However, any such directions must not conflict with the national framework, Integrated Risk Management Plan (IRMP) guidance or enforcement guidance for the Fire Safety Order. Should the direction contravene these then the Secretary of State can amend or set it aside. This provides for a hierarchy for direction.
4.3 The draft Bill does not provide for any such hierarchy or consideration of the sovereign will of Parliament in the form of the National Framework and adds a new power of direction. This appears to have the potential to create conflict or confusion at local and national levels. A clear statement of how these competing matters are to work together and what the Secretary of State will take into account before issuing directions would be welcomed.
Working with the Regulator
Application of regimes
4.4 The draft Bill provides for the Regulator to ask fire and rescue authorities and local authorities to undertake work to facilitate the Regulator’s functions. However, the draft Bill does not clarify how this correlates to existing regimes for which those bodies are the current enforcing body.
4.5 The Home Office consultation states that the Fire Safety Order will continue to apply to buildings in scope of the new regime. It is unclear whether local fire and rescue authorities continue to be the enforcing authority under that regime. At the same time Clause 72 of the draft Bill requires risk assessment of the building including fire risks. This duplicates the Fire Safety Order requirement but appears to be subject to enforcement by the Regulator.
4.6 This gives rise to questions about jurisdiction and which powers the relevant authority may be acting under, noting that powers under the draft Bill and the Fire Safety Order are not the same, what offences may be committed and whether charging or fees for intervention may apply and how they are to be collected.
4.7 Clarification of how the regimes will work together would benefit both enforcers and those responsible for compliance.
The Building Safety Regulator as Building Control Body
4.8 Although a number of provisions are made around working with fire and rescue authorities, it does not appear that a duty to consult the fire and rescue authority about building regulation application has been made and consequently the Regulator will be under the same duty as local authorities and approved inspectors. We would suggest that Article 45 of the Fire Safety Order is amended to include the Regulator.
5: Does the Bill improve the product testing regime in a way that will command the full confidence of the sector?
5.1 We strongly support the intent to control construction products, and particularly to withdraw, and/or rectify where construction products are deemed to be unsafe. However we do have some queries as some areas appear unclear.
5.2 Schedule 8 of the draft Bill looks to be adding further regulations. We appreciate the need for additional standards, but question if the number of additional regulations are following the intent of the Fire Safety Order to reduce the number of fire safety related pieces of legislation, and following the expectations of the Hackitt review in reducing complexity within the overall regime. We assume the list set out in Schedule 8,4 is not exhaustive, but would recommend the addition of wording that specifically includes the use or installation of the product, including limitations of its use. This could include, for example, limitations of a particular gap size in which a fire retardant filler product (e.g. pink foam) could be inserted.
5.3 It is unclear how Schedule 8, 2 to 6 and ENs 963 and 964 will conflict with the intent for the UK to remain active in the European Committee for Standardization (CEN). For example the UK would normally be required to adopt the European standard as a BS EN and withdraw a local standard if there was one for the same subject.
5.4 Schedule 8, 7 to 10 and ENs 965 and 966 suggests quite wide ranging powers given to local authorities to require the withdrawal of a product from the market, and require rectification. This may come down to opinion and interpretation. Schedule 8, 10, (b) of the draft Bill suggests that there may be an appeal provision and it is not clear whether this is yet to be decided. Within the regimes, consideration should be given to what happens if a notice is served to recall but the company has ceased trading or been dissolved.
6: Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?
6.1 As noted above, the draft Bill provides an opportunity to address issues relating to the identification and holding to account of those responsible for buildings of all types, notably overseas owners and developers who can ‘game’ the system. Currently, operating from offshore locations to which legal documents cannot be readily served, and at which the identity of directors is protected, presents challenges for enforcement. We welcome that the Bill seeks to remedy this, for example as set out in Example 1 under EN 516 which would require the Accountable Person to provide a registered address in England or Wales at which notices can be served.
6.2 In more general terms the draft Bill appears to provide opportunity, whether through guidance or secondary legislation, for issues such as sprinklers to be addressed. LFB would welcome and support any provision that makes it more difficult for those responsible for premises, whether new build or existing, to ‘write out’ fire safety improvements such as sprinklers and improved ventilation systems. We would suggest that robust guidance will be required to ensure cost benefit analysis is not incorrectly used to artificially suggest gross disproportionality of cost. Nonetheless we are appreciate the need to enforce in a manner that promotes business growth.
6.3 We also wish to use this submission to reiterate our for support for Automatic Fire Suppression Systems (including sprinklers) which our experience shows play a significant role, as part of an appropriate package of fire safety measures, in reducing the impact of fire on people, property and the environment. They also assist firefighters in carrying out search and rescue operations by limiting fire development, which significantly reduces the risks to firefighters. We have actively called for their wider use for well over a decade.
7: Additional Comments on the Draft Bill and Explanatory Memorandum
Use of language
7.1 We welcome the removal of gender specific language in the draft Bill. However we note that gender specific language has been used in the explanatory notes, where it could have been easily avoided. We would like to see this amended when the final Bill and notes are published.
7.2 Generally the draft Bill will add significant numbers of further regulations and statutory instruments. We appreciate and support the majority of the intents within the draft Bill, but question if the number of additional regulations are following the intent of the Fire Safety Order to reduce the number of fire safety related pieces of legislation, and are following the expectations of Dame Judith Hackitt in reducing complexity within the overall regime.
Expenditure incurred by relevant authorities
7.3 We have noted that where the Regulator requests, or a direction requires, a fire and rescue authority or a local authority to undertake work to facilitate the Regulator’s functions, the Secretary of State may make regulations about reimbursement by the Regulator of expenditure incurred by the relevant authorities. Further, the Secretary of State may also make payment to the relevant authorities in respect of actions undertaken by the authority in complying with a request or direction. It is unclear how this will correlate with proposals in the consultation on the Fire Safety Order for changes to charging by fire and rescue authorities or to possible changes to allow charging for enforcement interventions. We would not wish to become unnecessarily embroiled in disagreements around whether work is for the Regulator or as a consequence of our own enforcement duties under the Fire Safety Order. That appears particularly possible where attendance at premises arises at the request of the Regulator but where enforcement activity under the Fire Safety Order at the premises then becomes necessary.
7.4 It appears a suitable expectation that an architect’s competence continues throughout the time they practice. We note that this will align with the competence review and consultation and we assume this will result in an increased focus on architects understanding of fire safety.
New Homes Ombudsman
7.5 The intent is to provide a redress process for the homeowners and this is welcomed. However, it is unclear who the independent ombudsmen will be. We note that other such schemes have been criticised as they have included representatives from the developers themselves so are not perceived to be truly independent.