Mark London, head of the construction and technology team at Devonshires, talks about what the sector can expect from Dame Judith Hackitt’s proposed new regulatory framework for building safety.
There are going to be two significant outcomes from Dame Judith Hackitt’s review of building regulations – although both will almost certainly require consultation before any primary legislation is put in front of parliament.
The first concerns the probable introduction of a new regulatory regime, which will establish an approval and inspections regime by the joint competent authority and require construction contract parties consistent with those already defined in the Construction (Design and Management) 2015 (CMD 2015)regulations to ensure – or to ensure insofar as is reasonably practicable – that the requirements of the building regulations are met in connection with a notifiable project.
The primary responsibility for doing this will likely sit with the principal contractor, as Dame Judith recognises that clients, principal designers and others already have obligations under CDM 2015 and health and safety law generally.
Although the current Building Act can in some instances be used to prosecute where there has been a breach of the building regulations, it is vanishingly rare, and the Act does not set clear duties in the same way that health and safety law does.
Dame Judith recognises this and wants criminal law to be available to sanction cases where there has been a serious breach of building regulations. At present the only real sanction is a civil one for breach of contract – and the state has no part to play in that.
The new regulatory regime will introduce the possibility of criminal sanction and significant fines for a party found in breach, although it will more than likely only fix on those breaches that are significant and/or give rise to a risk to the health and safety of those lawfully using the premises.
This, Dame Judith hopes, will lead to a significant improvement in both the quality of workmanship and design. In that, she is absolutely right. We have a significant problem with basic standards of construction in the industry – whether it’s in respect of fire compartmentation, fire stopping generally or the correct use of cavity barriers.
These examples, which are all directly relevant to fire safety and the life chances of those within premises, are Dame Judith’s clear target.
Changing building regulations
The second significant outcome will be a change to the building regulations. Quite what this will look like remains to be seen, but we can expect a more thorough requirement to establish the suitability of materials used in construction – whether that is to do with combustibility, strength or in general.
We may end up with a more prescriptive model, as in some other jurisdictions, but precisely what it will ultimately look like remains to be seen. Whatever the ‘new’ building regulations are, we can expect a lengthy consultation period.
For providers of affordable and social housing, the new regulatory framework will mean that RPs will have to spend more money on quality, pure and simple. It will no longer be permissible to throw everything onto the shoulders of the contractor and contract administrator. RPs will need to return to the days of using residential clerks of works and specialist consultants to check the quality of design and construction.
There will need to be better use of technology to monitor the quality of design and workmanship – everything from building information modelling to time lapse photography. Modern methods of design and construction that can be more easily quality controlled, such as offsite manufacturing, will undoubtedly become more popular.
RPs will need to invest more in training so that project managers understand what the critical health and safety elements of construction are, and how they can be checked.
A more imaginative approach to public procurement in construction projects will also be necessary. Rather than adopting the traditional price and quality mix, which inevitably sees the least expensive contractor win – with the inevitable consequences of a small profit margin and reluctance to police the supply chain – greater use of procurements around set prices or price ranges will be utilised.
The means of carrying out construction work will likely change too. Design and build, still the most popular route to construction in the sector, may well give way to construction management and traditional construction, where the RP has direct control over the supply chain and its supervision.
Pressure to make these changes will not come just from a new regulatory framework and the threat of criminal sanction. The insurance and valuation sectors are already marking their ground here.
In future, the insurance of a tall building may be conditional on sign-off from a fire engineer. If not, insurers will argue, ‘How can we be sure that the fire compartments have been constructed in accordance with the building regulations?’
We will almost certainly see requirements that are imposed by the insurance sector become intrinsic features of the construction landscape – much the same thing happened with subsidence in the 1970s.
Valuers will undoubtedly adopt the same position. Gone for good are the days when a building control certificate was enough for an insurer or valuer to assume the building complied with building regulations.
Increased role for the RSH
Does this mean we will see an increased role for the Regulator of Social Housing (RSH)? In a nutshell, yes. The RSH has a statutory obligation to protect consumers when failure to meet standards is likely to result in serious detriment.
Where there is a new regime that will potentially hold RPs criminally liable for failing to build in accordance with regulations, then that may well constitute a breach of the standard through the serious detriment test.
Mark London is head of the construction and technology team at Devonshires.