Building Safety: Are you ready for 1st April? - Webinar Q&As

Are you ready for the Building Safety Act 2022? Our latest webinar covered what you need to be thinking about now to have assurance that you are well-prepared for your new duties and obligations. Our panel of experts were joined by Liz Oliver, Safer Homes and Neighbourhoods Director at the Hyde Group, who shared the organisation’s experiences with preparing for their new duties alongside what they have learnt, and what their key challenges and significant issues have been.  

Watch on-demand below.

During the webinar, we received some great questions which our experts have answered below.  

When the Building Safety Regulator (BSR) becomes the Building Control Authority (BCA), does that mean that Local Authorities can no longer be the BCA? And are approved inspectors no longer able to sign off building control as well?  

 The Health and Safety Executive (HSE) have set out their timeframe for setting up the new BSR, and the BSR is due to become the new building control authority for residential high-rise buildings (HRBs) from 1st October 2023. From that date, developers must apply to the BSR for building control approval before commencing work on any HRBs. The BSR will also be the body which signs off on the building when it is completed, and any buildings which are already in construction by that point.  

 Click here to read what the HSE are doing to prepare for the new building safety framework. 

If a building project is out of the scope, can it be registered if the client requests it?  

 The short answer would be no because the BSR would have no legal grounds for accepting the registration of such a building or for issuing a Building Assessment Certificate for it. 

Where does the Principal Designer fall into the hierarchy? 

The Principal Designer role is a dutyholder under the Construction (Design and Management) Regulations 2015, and together with the other dutyholders (client, designers, contractors and principal contractors) will have new duties under the Building Safety Act. Their new duties will be to:   

• plan 
• manage 
• monitor 

their activities in relation to building regulations.  

Can you get gateway one retrospectively? 

You cannot get retrospective approval for gateway one.  

• Gateway one has been in place since August 2021. The gateway ensures that fire safety matters, as they relate to land use planning, have been considered at the outset when the building is first envisaged. This gateway is intended to ensure that developers consider fire safety needs at the planning stage, so that buildings are designed to be safer, so the HSE have become a statutory consultee as part of that process.  
• Gateway two replaces the building control deposit of plans stage, before building work starts for higher-risk buildings. If you have a building that has already received planning permission before the gateway one requirements came into force, you would still have to satisfy planning gateway two from April 2023 before building control would approve your plans. In effect, the requirements would still be that you must satisfy all the obligations and requirements at that stage.  
• Gateway three is the final certification stage when the relevant building work is complete.  

If you wanted to get retrospective planning gateway one approval, you would have to resubmit for planning, and that would also depend on your stage in the development process. In summary, you cannot get retrospective approval but you will still have to satisfy any other gateways as you hit those stages.  

What about responsibilities for those with buildings only under 18 metres? 

The specific obligations under Part 4 of the Building Safety Act only apply to buildings that are over 18 meters and/or seven storeys in height. However, do not forget about the other requirements for buildings over 11 meters in height set out within the Fire Safety (England) Regulations 2022, which came into force on the 23^rd January 2023. For more information on the requirements of the new regulations for these buildings, read our dedicated blog here.  

The government have also indicated their intention to broaden the scope of buildings which will fall within scope of Part 4 in the future, but at present there is no further information on likely timescales or which buildings will be included. 

Are people classifying the Principle Accountable Person (PAP) as the organisation or actually naming a person within the organisation? 

 Part four of the Building Safety Act identifies ‘Accountable Persons’ (APs) for residential HRBs. APs will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies.  

 The AP will usually be an organisation or business but could also be an individual.  

 If a building has more than one AP, the AP responsible for the structure and exterior of the building will be the PAP. When buildings have a single AP, that entity or person is the PAP.  

Is the Responsible Person (RP) dutyholder also an organisation, rather than an individual? Where does the building safety manager role come in? 

 The RP is the dutyholder within the Regulatory Reform (Fire Safety) Order 2005, and like the AP/PAP under the Buidling Safety Act that is the organisation. 

The proposed building safety manager role is not a prescribed role, as this requirement was removed before the Building Safety Act was approved. However the AP/PAP needs to make sure that they satisfy and can deliver all the requirements set out within the Building Safety Act, and may decide to employ a qualified Building Safety Manager who is competent to manage and fulfil the operational duties. 

Will potential tenants or buyers have clear visibility of the status of assessment and building safety certification to inform buying decision?  

One of the duties that are set out within the Building Safety Act is the requirement to develop and implement a residents’ engagement strategy for each building. The strategy should set out when the AP/PAP will provide information to residents within the building and what sort of information they will provide. This should include what information they will make available to existing and potential residents and tenants.  

It is reasonable to expect solicitors acting on behalf of potential purchasers to make enquiries about the status of the building to understand and be assured about the status of the registration with the BSR and progress of the Building Assessment Certificate, if that stage in the implementation programme has been reached. 

Is there a template/format for how the government want the safety case produced? 

Not at the moment. One of the principles of safety cases is that there is no prescribed format, and it is for the building owner to identify and understand the key risks for the building and evidence that they are being managed. The HSE, on behalf of the BSR, has produced some initial guidance which is available through the HSE website. They are continuing to refine the guidance and will publish any updated information.  

If current guidance to accompany the building regulations require automatic opening vents for smoke ventilation, sprinkler systems, emergency evacuation systems, firefighting lifts etc., how does a building safety case mitigate the omission of these elements in an older building where this was not a requirement? 

 There are many existing buildings that do not meet the requirements set out in current building regulations, although the absence of such features does not by themselves make a building inherently unsafe; however, it is for the AP/PAP to understand their building and the risks, and to set out how those risks will be managed so it is safe. In some cases, the AP/PAP may determine that the only or best way to address risks is to retrofit the building with measures like Automatic Opening Vents (AOVs) or sprinkler systems, but in certain cases there will be other ways in which those risks can be managed. 

Are there any pdf examples available of safety cases for various building types? 

We anticipate that people will start to publish examples in due course as organisations are in the early stages of pulling them together. We are not aware that people are sharing them widely at the moment because we are still waiting for clear and firm guidance on safety cases. The best thing to do is to speak with your networks and work collaboratively. Pennington Choices can also provide a critical friend service to work with you to review what you have drafted so far, and to give you advice or help you pull your safety cases together. 

What mechanism is being recommended to ensure critical information can immediately be made available to agencies, e.g., the fire brigade in the right platform? Fit with BIM and informational security measures? 

This links to the Fire Safety (England) Regulations 2022, which include requirements to share information with the Fire and Rescue Services for buildings that fall within the scope of those regulations. If you have buildings that fall within scope of the Building Safety Act, they will also fall within scope of the Fire Safety (England) Regulations. We are aware that many Fire and Rescue Services are not yet ready to electronically share information, so the best thing to do is engage with your local Fire and Rescue Service or your primary lead authority and work with them to understand what they require.  

What is happening to ensure competency of every BSR to ensure they adequately challenge each safety case (and don’t assume other parties are competent and robust)? 

 The HSE are working to implement the BSR. As part of that, they will have plans in place to ensure those who will undertake various roles are competent to do them. For those who will be assessing safety cases and issuing Building Assessment Certificates, we can assume that the BSR/HSE have an implementation plan to make sure that they are competent to do so and that they act consistently, and that there will be a clear framework for assessing safety case reports. 

As well as compliance, there needs to be the right culture too? 

We absolutely agree with and echo this point about culture. A positive culture requires effective leadership, a clear organisational environment with clear roles and responsibilities undertaken by those who are appropriately trained and experienced to carry them out and who are accountable for the activity they are assigned. Culture should be open and honest, with mistakes and errors taken as an opportunity to learn and prevent them happening again. People must feel comfortable highlighting issues and near misses, and challenging practices and decisions they feel may create risks.  

Have you any insight into how the BSR is likely to view Large Panel System (LPS) blocks, as they have inherent structural weakness due to their design and construction methods? 

The PAP/AP needs to understand the risks that their buildings pose and needs to set out a clear understanding of how they can manage those risks. LPS blocks will have greater risks of structural failure in a fire situation than other blocks, so it will be for the PAP to determine what the risks are and how can they manage and mitigate them. We're not aware of the BSR saying that they will not accept these buildings and won't issue Building Assessment Certificates; it will depend on the building and how safety is managed. 

Can anyone share their experiences or recommended suppliers for pulling together asset data and holding information in relation to the golden thread?   

 Certainly! At Pennington Choices we are supporting organisations to help them to manage data. We have a wealth of experience that we can bring to assist organisations who are struggling with how they need to hold their asset data, and how they can hold the golden thread. Please get in touch, we will be happy to help.

What strategies have you used to ensure different communities that live in HRBs are effectively communicated to, regarding safety updates digitally and non-digitally for fire safety?   

 That should be included within your residents’ engagement strategies. You would need to understand the residents who live in your buildings and any specific requirements around consultation, engagement, and communication.  

Make sure information is provided in a format and language that is appropriate to them and their needs. It may mean providing information in different languages, pushing out the information digitally through different portals on your website, and collaborating with support and stakeholder groups to help disseminate information and engage with hard-to-reach groups. Make sure that you think about how you can simplify the information as much as possible. For example, use infographics and think about other ways of visually communicating with people, such as creating webinars or podcasts for your residents; think innovatively about how to engage with your residents.  

We hope that these Q&As have helped to clarify some of the key aspects of the Building Safety Act 2022, and what it means for building owners, managers and residents.