Building Safety Bill

Written evidence on the Building safety Bill submitted by Gerald Kennedy to the House of Commons Public Bill Committee

(BSB07)

1. The bill envisages that the Planning and Design process is the correct vehicle – Planning relates to appearance, height, suitability, location etc., but the factors which cause defects such as missing fire stopping, defective fire detection systems, missing insulation etc., are caused by contractor error or omission. Traditionally, these would all have been resolved by Local Authority Building Control by on-site inspection, the clue being in the word ‘control’. Planning and Building Control are completely separate disciplines. In addition, the bill doesn’t make clear precisely how potentially fatal defects which are often hidden, can be identified via third party methods.

2. The Government states that the year 2000 is considered to be the starting point for this issue with which chronology I agree, but it would then logically be necessary to identify the policy and legislative components of failure which occurred at that time. In my opinion, these are:

a) The Approved Inspector scheme which was introduced in the late 1990s to provide competition amongst Building Control officers, but it also abolished the local authority monopoly on certification, causing what one expert has described as a "race to the bottom" in terms of standards. However, local authorities retain the enforcement role and the Government website confirms this, as does a recent report by the Local Government Association: the penalty for non-compliance with the Building Regulations is an unlimited fine

b) The publication of guidance by the then Labour Cabinet office in 1998 (the Enforcement Concordat) which told councils and other public bodies to use ‘education’ and engagement as an alternative to criminal prosecutions, fines, legal costs etc. This was a policy and not a statutory requirement, but unfortunately has severely affected local authorities’ role ever since, because it confers effective immunity from prosecution upon any organization causing harm. We would now refer to the Concordat as the principle of ‘proportionality’

c) The FENSA scheme (2002) which allowed window installers to self-certify their work; the Grenfell enquiry heard clear evidence about how windows were incorrectly installed resulting in their lacking half hour fire resistance. Self certification provides in effect a third party report which is where significant problems of supervision arise.

None of the above factors are addressed in this draft Bill which therefore effectively replicates many of the mistakes made during the past 20 years.

3. High rise blocks require specialist forensic building surveying skills on a multi-disciplinary basis which this draft bill doesn’t recognize. The current EWS1 survey was drawn up by the RICS, to give its own valuer members guidance as to whether properties are suitable security for mortgage lending. Both Approved Inspectors and local authority Building Control (LABC) are often RICS members. The Grenfell enquiry has heard clear evidence about ‘inspectors’ etc., who had not achieved a qualification or even if they had, it would not have equipped them for these problems. The Government documentation refers to ‘suitably qualified’ people which has no definition; this could refer, e.g., to a former bricklayer being considered ‘suitable.’ The Bill needs to specify that M.R.I.C.S. would the minimum necessary; in addition, because RICS has a disciplinary procedure in place, this gives some measure of protection to the general public.

4. The existing legal structure is complicated but the proposed draft Bill would create an even worse situation leading to overlapping responsibilities, extensive duplication and local and central Government agencies having wholly different criteria, utilizing the Data Protection Act as a means of refusing to share vital information with each other. For instance, the same property could be subject to both the Building Regulator, the Local Authority, and also the Building Ombudsman with the latter potentially adjudicating on a complaint which relates to non-compliance with the Building Regulations. Such enforcement would be criminal for the first two agencies but non-criminal for the Ombudsman who would deal with it as arbitration. It would also be possible for the self same property to be the subject of an NHBC warranty complaint and also possibly a Buildings Insurance claim – this would involve at least five different agencies, all operating with different (and in some cases conflicting criteria). This is simply not in the public interest.

At present, as the recent LGA report confirms, councils have the enforcement role, both under the 1984 Building Act and under the 2004 Housing Act where there is a Category 1 hazard (risk of death). They have a statutory duty to act if there is such a hazard.

As I understand this draft bill, it is proposed that both Approved Inspectors and LABC register with the Building Safety Regulator. The latter, I understand, would merely have a ‘power’ to enforce, which weakens the legal framework, because, in law, a power merely gives an agency the status to intervene, should they choose to do so (which they may not).

This represents a substantial weakening of occupiers’ rights, because a Council’s failure to comply with a duty can, of course, be challenged and enforced in the Courts.

As I understand it (and I stand to be corrected) the Building Safety Regulator would be based outside subject postcodes as part of the HSE, but would not have the facility to carry out physical inspections on subject complaints. They would therefore have to rely on third party reports (see 2c) with all the attendant risks. The danger of a major catastrophic incident such as Grenfell Tower can be mitigated by staged physical on-site inspections (which is what used to happen when LABC were in charge). In addition, the HSE is primarily a reactive agency; it is traditionally under-resourced and, in cases where they investigate fatal accidents, may take years to process cases to Court. This is not meant as a criticism.

The case of retaining LABC in the Enforcement role is, in my opinion, overwhelming: they are normally located within the subject postcode and can therefore react to complaints immediately. They are qualified to assess risk and building defects (which are sometimes part hidden) whereas it is unclear how exactly the Regulator would act without seeing the property. LABC are also subject to local democratic scrutiny which is again in the public interest. Their role therefore requires substantial training of surveyors as LABC inspectors to fulfil this role.

G D Kennedy, former MRICS Surveyor and Expert Witness (primarily on non traditional and tower block premises); former MCHLG Consultant and co-drafter of Sections 79-82 of the EPA 1990, in a personal capacity.

Monday August 23rd 2021