We are entering a new era for building safety - but are we ready for the new regulator?

Travel back just 10 years into the past and an event for construction professionals on building safety regulations would have drawn a well-intentioned but small audience, most likely safety experts keen to talk to like-minded people in their field. Cut to last week and the Building Safety Regulator’s first conference  saw hundreds of professionals from across the construction industry pack into the 2,300-capacity Westminster Central Hall. It felt more like a rock concert or a West End show than an industry event.

The reason? This was the first chance for many to hear first-hand from the new regulator, which sits within the Health and Safety Executive (HSE) and is expected to play a huge role in winning back trust to the industry post-Grenfell Tower tragedy.

The concept of a regulator is certainly starting to feel more real now. The role has its own logo and branding and, from early next month [6 April], will open its process for building owners to register around 12,500 high-rise buildings.

This is seen by many as the “launch” of the new regime, as it is the first time the BSR will place requirements on firms using its powers under the Building Safety Act.

Peter Baker, the chief inspector of buildings at the HSE and head of the BSR, certainly emphasised the significance of the occasion on the great hall stage last week. The registration milestone will, he said, “usher in a new era for building safety regulation”. He added that he was aiming for a “world-leading” regime.

But how ready is the new regulator for the gargantuan task at hand? And is the industry prepared for the new era?

The regulator and its origins

Before we delve into where we are currently, it is worth a brief reminder of how we got here. The terrible events at Grenfell Tower in June 2017, which caused the deaths of 72 people, led the government to commission a review of building regulations and fire safety.

The eventual report, by Dame Judith Hackitt, called not just for tweaks to the specification of cladding systems but for a “radical rethink” of regulation in an industry that, Hackitt said, “has not reflected and learnt for itself”. Hackitt took aim at the industry’s “ignorance” of the rules, its “indifference”, its inadequate regulatory oversight and a lack of clarity over regulatory roles and responsibilities.  

The report’s recommendations, including the formation of a new regulator, have largely been adopted by the government, with the bulk of the changes coming in this year.

These consist of regulation of building control, including registration and certification requirements, and a three-part “gateway” system under which the BSR has to be satisfied that requirements are met during the planning, design and build phases of a scheme (see box). Competency and information-sharing requirements among defined “dutyholders” will also need to be met.

The reforms are wide-ranging and complex and this is presumably the reason why a huge, information-hungry crowd of nearly 1,000 people packed into the Westminster event last week.

Gateway one

It is worth saying that the HSE in its regulator role has already been involved in “planning gateway one” under separate regulations not in the Building Safety Act.

Since August 2021 the HSE has been a statutory consultee for planning applications involving high-risk buildings. This means local planning authorities have had to consult the regulator before granting planning permission.

The HSE set up a small team of 12 people, including six fire safety assessors, to check planning applications against standards and guidance. Last summer the HSE was raising concerns about well over half of the applications it was checking (see graph).

Although that statistic has since improved, Baker said the number of instances of concem shows the message that fire safety needs to be considered in the earliest stages of the life of a high-rise building “has not yet fully landed”. And this needs to change, he said.

In each month from May to August last year the HSE recommended the refusal of schemes in a handful of instances. Mark Wilson, planning gateway one service lead at the HSE, admitted to the conference that last summer had been a “torrid time”, although things have improved in recent months.

Interestingly Wilson said there were cases where it recommended refusal due to the local authority not making progress with a developer, whereas actually the developer was simply confused.

“We weren’t speaking enough to developers who are struggling with the new regime and so now, before we get to the point of suggesting refusal, we will always try and meet with the developer to try and resolve the issues or explain our perspective, he said.”

Wilson said 60 or 70% of concerns raised by the HSE were connected to single staircases, including concerns around firefighter access and travel distances and how the single staircase connects with other areas of the building. Wilson points out that single stairs are allowed for the time being, while the government consults on a potential ban, but cautioned: “We will be looking to make sure that the single stair is protected to the highest level possible through built-in inherent design features.”

What’s in store from April

The planning gateway one activity however is small fry compared with the workload the fledgling BSR will be taking on in the coming weeks and months.

From 6 April the new rules requiring building owners to register their high-risk residential buildings with the BSR will technically come into effect, although the BSR’s new digital portal for logging registrations will not be live until around 12 April. Building owners will then have less than six months to register, with failure to do so within the timescale regarded as a criminal offence.

Given the sheer number of buildings to be registered – and then all the gateway two and building control requirements later in the year – all eyes will be on whether the BSR has the resources to cope.

“My perception from my reading and those I have spoken to in the industry is that the regulator will struggle to cope with the volume of applications and the number of queries which will come through, thus causing delays,” said Simon Tolson, senior partner at Fenwick Elliott and speaking to Building in his capacity as a Building the Future commissioner.

With 12,500 buildings requiring registration in just six months, Tolson said resources were likely to be a key factor. “It’s crucial the registration process is well resourced by the BSR/HSE, particularly given that the risk of criminal liability and even imprisonment is the stick,” he added. 

In return he said the industry should “expect and deserve a match-fit regulator”.

Baker is certainly aiming high, promising the BSR conference that he wants to establish a “world-leading” regulatory regime. 

An HSE spokesperson told Building that it currently has 200 people employed in its BSR function and plans to recruit a further 462 in 2023-24. She added that it has “necessary resources” in place for the registations.

It is not clear how many of these 662 will be recruited before October, when the regulator takes on more functions.

Andrew Mellor, partner at PRP and another Building the Future commissioner, also wonders whether the BSR has enough people and stressed the importance of the BSR having a digital registration and application portal “that is user-friendly, robust and does not crash”.

Rebecca Rees, partner at Trowers & Hamlin and a third commissioner, is concerned about the impact of delays should the BSR not sign off building completion certificates within the promised 12-week timescale at gateway three. “It does not seem that there will be any sanctions for the BSR in the event that it does not stick to its timescales,” she said.

In response, the HSE spokesperson countered: “The key to avoiding delays will be to ensure all the necessary information is available to evaluate within each application.” 

Changes for building control officers

Another area where resourcing may prove tricky is within local authority building control. Under the act, regulation and registration requirements will apply to all building control surveyors for the first time.

“It’s crucial the registration process is well resourced by the BSR/HSE– particularly given the risk of criminal liability and even imprisonment is the stick.”

Simon Tolson, senior partner, Fenwick Elliott

Lorna Stimpson, chief executive of Local Authority Building Control (LABC), told Building’s risk and regulations summit earlier this month that she was concerned about an exodus of highly-skilled people from the industry who were considering retiring or changing career rather than grappling with the new requirements.

It was perhaps telling that the Department for Levelling Up, Housing and Communities (DLUHC) recently felt the need to announce a £16.5m fund for the LABC to hire 110 building inspectors, along with £26m for fire services to hire 111 new fire protection officers.

Despite welcoming the extra funding, Stimpson pointed out that there is little point in bringing in new people unless there are more experienced surveyors to train them. “You learn building control from those senior people who you work with,” she said, “so without them, our profession is in demise.”

The LABC, the BSR and ministers will all be hoping that the building control function is not too decimated by October, when the new requirements come into effect.

Secondary legislation

While building control professionals may be scratching their heads at the huge regulatory change, the rest of the industry has also got a great deal to get its collective head around, not least meeting all the gateway two requirements, the regulations for which have yet to be finalised.

Mark Reynolds, co-chair of the Construction Leadership Council, pointed out to the BSR conference that “there are 32 different pieces of secondary legislation, that have either gone through a consultation process or are going through the consultation process”.

In response the CLC has set up a new workstream looking at regulatory clarity and providing feedback to the government. Reynolds added: “We need to keep close to what is happening over the next few months.”

He said there was a need to establish the standards and regulations, which is the government’s responsibility. But it was the industry’s job to ensure it has a “skilled and competent workforce and [that] we have got capability and capacity”.

When it comes to competence, the act relies to an extent on the industry itself to develop its own ways of measuring and certifying that people are competent to do the work they need to do, although the BSR will set up an Industry competence committee to help monitor progress.

Questions around competence

The most active work by the industry in this area has been done by the competence steering group (CSG), made up of 150 organisations in the built environment.

The CSG has set up 12 working groups to draw up competence frameworks. The group’s co-chair, and CIC chief executive, Graham Watts said literally “hundreds if not thousands” of people have been involved.

Watts added: “We now have a platform, we have the standards in place pretty much across the board.

“But what we need to do now is translate those standards into actual qualifications, continuing professional development and training. That is the most important and vital next step that we need to be getting on with over the next year.”

Other regulators

Another area of uncertainty in the industry is the relationship between the BSR and numerous other regulators in the building safety space, and what happens when there is confusion over regulatory overlap.

For instance, the fire and rescue services regulate on fire safety orders, the beefed-up Regulator of Social Housing will have powers over the maintenance of many residential blocks, a new National Regulator for Construction Products is being created, and there are the aforementioned building control teams in local authorities in addition to environmental health departments. What happens if messaging or guidance from different regulators conflicts?

Rees and Mellor suggested to Building that there should be one central body or advice line to prevent confusion. After all, Hackitt recommended the establishment of a Joint Competent Authority, involving the LABC, fire authorities and the HSE to oversee safety cases.

Baker seems well aware of this. He told the conference the BSR was working through these issues with other regulators and looking at developing a memorandum of understanding (MOU) to ensure clarity over who is responsible for what, with the BSR not necessarily always the prime regulator in every area.

“The last thing anybody wants is the BSR engaging with you on a Monday, the fire service on a Tuesday and then the Regulator of Social Housing,” he said.

Rees said the success of the BSR’s plan to mitigate this would “all depend on how detailed the MOU will be, and whether it will allow landlords sight or upfront detail as to who will be turning up and when on their doorstep”.

More regulations on the horizon

In just a few days’ time, the great increase of regulatory activity begins, with registration of occupied buildings, followed by the flood of further regulation and reporting requirements, competency rules, golden thread requirements, requirements to build safety cases and more from October onwards.

It is clear that the fledgling BSR has a huge job to do, with question marks about its capability and resources among what Baker describes as a “complex patchwork” of regulation.

 This is the last chance saloon for the construction industry

Peter Caplehorn, chief executive, Construction Products Association

But, in many ways, the biggest job is being done by the industry itself. And some are concerned that this might be the final opportunity it gets to sort its house out on the issue of building safety.

Peter Caplehorn, chief executive of the Construction Products Association, told the conference: “This is the last chance saloon for the construction industry, we have got to take advantage of this situation and use it to the fullest.”

His words echoed Baker’s rallying call to conference delegates, imploring the industry to “take ownership of the risks” in its buildings.

Watts said: “I have been working in the industry for 44 years and for the first 38 of those years I can never remember sitting in a room talking about the safety of residents and occupants of the buildings we were producing. It was just taken for granted. But now I don’t spend a single day without talking about it.”

Watts however said his main concern is that he is still meeting people in the industry “who don’t think the new regime, the new culture applies to them”.

“It’s important we get the message across that these changes are for everyone,” he added.

The regulatory changes coming down the road are enormous. The construction industry can only hope that the BSR will have the resources, IT support and necessary nous to ensure the new era gets off to a great start. 

But all eyes are also on the industry. For many, its reputation is once again on the line.