Is the Building Safety Act 2022 fit for purpose?

Seven years after the tragic fire at Grenfell Tower, the Grenfell Tower Inquiry published its final report on 4 September. The inquiry was damning about the regulatory deficiencies which led to the fire in 2017 and, despite the swathes of regulation introduced through the Building Safety Act 2022, has recommended further areas of improvement. What has the 2022 Act already addressed? The 2022 Act – introduced following an independent review of building regulations and fire safety in the Hackitt report in 2018 – already makes significant strides in addressing some of the failings which led to the Grenfell Tower tragedy. Planning for fire safety To ensure that fire safety is embedded in the design of buildings going forward, “Gateway 1” was introduced for all higher-risk buildings (buildings over 18m in height or seven storeys high with at least two residential units). Where this applies, applicants must provide a fire statement demonstrating the approach to fire safety, and the local planning authority must consult the Health & Safety Executive before determining that application. Resident engagement The inquiry’s final report set out the devastating consequences of the breakdown in the relationship between the residents of Grenfell Tower and the tenant management organisation and the lack of action taken in response to residents’ concerns around safety. The 2022 Act already addresses this by requiring the “accountable person” of an occupied HRB to put a residents’ engagement strategy in place, setting out how decisions regarding the management or safety of the building will be made and when and how residents will be consulted and informed. A residents’ engagement strategy must be submitted in order to obtain a building assessment certificate (confirming the accountable person has complied with their obligations under the 2022 Act following registration), so is an important – and mandatory – document. The 2022 Act also requires the accountable person to provide various documents to the residents or owners of residential units, including a safety case report setting out the fire safety risks in the building and how they will be managed, the residents’ engagement strategy and details of the complaints procedure. These changes resulted from one of the key recommendations in the Hackitt report, that “the involvement of residents must be at the heart of this new approach”, and its encouragement for “transparency of information and partnership with residents”. Information about the construction and layout of the building In response to recommendations in the Hackitt report, the 2022 Act also requires the accountable person for an HRB to keep a “golden thread of information” about the design and construction of the building, works carried out to it, and certain prescribed documents – including structural safety measures put in place, maintenance and repair works and inspections carried out, details of complaints, and plans of the building which can be accessed by residents, the building safety regulator and fire and rescue authorities. This already goes some way to addressing the lack of information available to residents and the fire and rescue authorities which contributed to the tragic events at Grenfell Tower. The availability of information about the building, and potential safety defects, also empowers leaseholders – as well as local authorities, fire and rescue authorities and others – to use the mechanisms within the 2022 Act to apply for remediation orders, or remediation contribution orders, under which the landlord must remedy defects in a certain period, or contribute to the cost of those works. Further changes recommended by the inquiry While the 2022 Act already addresses many of the issues flagged, the report also recommends further areas for improvement. Single regulator The 2022 Act established a new Building Safety Regulator, who is responsible for building control and overseeing standards of competence. Despite this change, the inquiry’s final report flags the continued fragmentation of construction regulation, with different government departments separately responsible for the building regulations and guidance, product regulation, the fire and rescue services and building control, which, the inquiry said, was a “recipe for inefficiency and an obstacle to effective regulation”. The report recommends that a single construction regulator – reporting to a single secretary of state, supported by a chief construction adviser – should be responsible for all functions of the construction industry. Higher-risk buildings The Hackitt report introduced the concept of HRBs, now enshrined in the 2022 Act. Those responsible for HRBs are subject to enhanced duties, including registration of the building, production of safety case reports and residents’ engagement strategies, keeping and provision of golden thread information and much more. The Grenfell Tower Inquiry final report considers the current definition – based on a building’s height – is an arbitrary definition, and how a building is used and the likely presence of vulnerable people who it would be difficult to evacuate in the event of a fire are more relevant factors. It therefore recommends an “urgent review” of the definition of HRBs. The current definition has already caused some confusion, with building owners finding it difficult to determine whether their buildings meet the height criteria, even with the extensive supporting regulations and government guidance in place. As the accountable person of an HRB is – rightly – subject to more stringent obligations, clarity and certainty over which buildings meet the threshold will be key, which may be difficult with a more subjective definition, causing challenges for those responsible for these buildings. With the inquiry recommending a more robust building control process, perhaps going forward classification of HRBs will be a matter of independent assessment throughout their construction. However, any change in definition may require an independent re-assessment of existing buildings, and perhaps registration of buildings which would not previously have been classified as higher risk. Whichever approach is adopted, it will clearly be important for those responsible for residential buildings to be in no doubt as to whether or not their building qualifies as an HRB. Assumption of responsibility for fire safety The Hackitt report recommended that the key roles of client, principal designer and principal contractor were defined, with duties imposed on each to ensure that the procurement, design and construction process led to safe HRBs. Similarly, one of the Grenfell Tower inquiry’s major findings was that, during the refurbishment of Grenfell Tower, none of the architects, contractors, sub-contractors or project managers assumed responsibility for fire safety. The regulations supporting the 2022 Act already require “clients” who commission building works to give a building regulations compliance statement when applying for building control approval (Gateway 2). However, the Grenfell Tower inquiry recommends that additional obligations are imposed on the principal designer and principal contractor to ensure they assume responsibility for safety by requiring them to give undertakings that the building will be constructed safely in accordance with the building regulations, and statements confirming safety on completion. It also recommends a licensing system for those carrying out works to HRBs. Fire safety strategy The inquiry also recommended introducing a statutory requirement for any building control applications (at Gateway 2) for the construction or refurbishment of any HRB to be accompanied by a fire safety strategy, which should be resubmitted at completion. That strategy should take into account the needs of vulnerable people, including any additional facilities or time they may need to leave the building or reach a place of safety within it. This is in addition to the recommendation in the Phase 1 report that the owner/manager of high-rise buildings should be required to prepare personal emergency evacuation plans for those with additional needs. Blocks of flats are already required to have a fire risk assessment in place, and the accountable person for an HRB must also prepare a safety case report under the 2022 Act, including a strategy for the building during an emergency. However, the inquiry’s recommendation may encourage a more focused consideration of these issues. Will these recommendations actually be enacted? One of the major criticisms levelled at the government during the inquiry was the failure to learn lessons from previous recommendations. In order to make the government accountable for making real change, the inquiry recommends introducing a legal requirement to maintain a publicly accessible record of recommendations made by select committees, coroners and public inquiries, together with a description of the steps taken in response. This means that if the government decides not to accept any of the inquiry’s recommendations, it will have to record its reasons for doing so and report to parliament each year. The government will therefore need to give serious consideration to these recommendations, and justify any which are not implemented. Given the public anger about the various failings, we envisage further changes to the 2022 Act. Ben Willis is a senior associate and Lucy Redman is a senior knowledge lawyer at Hogan Lovells International LLP Photo © Anthony Harvey/Shutterstock