Annex: Technical and minor issues

Clause 11(1)

Refers to “the following functions”, with no functions defined (and certainly none “following”). Subsection (3) sets out what the committee’s function will be.

Clause 16(1)

Refers to safety of “persons” in contrast with other clauses such as clause 4(1) which, correctly, refer to “people”.

Similarly:

inserted sections 58Z4 and 58Z5 in clause 44;

clause 47;

clause 86(7); and

Sched 8, para 12(a).

Sched 6, para 31, new section 101A to Building Act 1984

“Appointed person” in new section 101A means something different to Schedule 1. Given that an “appointed person” is going to be such a fundamental role within the building regs, this might give rise to avoidable confusion.

Clause 60

The definition of an “occupied” building will not cater for student accommodation.

It relies on “dwelling” which is unlikely to encompass such accommodation. In the Building Regulations, they are “rooms for residential purposes”, and not “dwellings”. The Government will therefore likely have to exercise its powers under clause 60 to amend the definition of “occupied” immediately if it is to include student accommodation, as suggested at EN para 228 (where the distinction between dwelling and student accommodation appears to be accepted).

Clause 71

It is unclear by what means the Government intends to allow a building safety manager (BSM) to appeal a decision of the regulator to direct that the BSM be dismissed.

Clause 86(7)(b)

“for” is included in error (see the definition of “relevant resident’s item” paragraph (b)).

Clause 88, ENs

Para 661 of the Explanatory Notes suggests the clause implies into long leases a general duty on the lessee to co-operate with the landlord.

Sched 8, paras 8–10

As drafted, the Government may have no power to issue regulations for “safety-critical products” imposing requirements relating to the risk of disease.

The purpose for which the power in paragraph 4 may be exercised in respect of “safety-critical products”, seems to be the risk of product failure causing death or serious injury.

If a product is “safety-critical”, it cannot be subject to any of the “general safety requirements” (paras 11–12) which do probably include requirements to assess, avoid or reduce a risk of disease.

Sched 3, para 6

The Regulator may disclose to the police any information held “in connection with” any of its building functions. This appears to encompass information obtained, even incidentally, in the execution of a warrant. It is not clear that this is a proportionate and justified interference with the exercise of the occupier’s rights under Art 8 of the European Convention on Human Rights. The Regulator will be the HSE. Information acquired by HSE inspectors under their powers under the Health and Safety at Work Act etc 1974 can be disclosed to the police but only used by the police in connection with health and safety legislation or the safety of the State (s 28(3)(c) and (5)(c)). The draft Bill has no such limitation on the use to which information can be put. Disclosure by the HSE to the police should be subject to consistent control.

Sched 8, paras 2–3, ENs paras 92–93

The Explanatory Notes suggest “designated products” in the Bill “covers” construction products “regulated by the EU framework”. That depends on how the Government exercises its power (in para 2 of Sched 8) to designate standards. It seems likely the Government will designate standards under this power to match “designated standards” under Art 18B of the Construction Products Regulation 2011 (Regulation (EU) 305/2011), as amended. There is no automatic incorporation of standards designated under the latter.