Session 2021-22
Building Safety Bill
Written evidence submitted by the London Fire Brigade (BSB23)
Parliamentary Briefing
Public Bill Committee, Commencing Thursday 9 September 2021
London Fire Brigade is London's fire and rescue service - one of the largest firefighting and rescue organisations in the world and we are trusted to serve and protect London. Decisions are made either by the London Fire Commissioner (the statutory fire and rescue authority for Greater London), the Mayor of London or the Deputy Mayor for Fire and Resilience. A Fire, Resilience and Emergency Planning Committee of the London Assembly holds the Commissioner, Mayor and Deputy Mayor to account.
Overview
London Fire Brigade (LFB) welcom e s publication of the Building Safety Bill, which aims to take forward the Government’s commitment to fundamental reform of the building safety system and remedy the systemic issues identified in Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety.
As was highlighted by the Hackitt Review, the building safety regime for new builds, conversions and renovations that has operated for many years has not been fit for purpose. Robust action to remedy this is required , with stringent oversight of all aspects of the industry and its practices being put into place.
The Building Safety Bill is an important step towards meeting the objective of a robust building safety regime. LFB acknowledges that the Bill is primarily enabling legislation and that further secondary legislation is expected in future which will provide a lot more of the detail of how the building safety regime will work in practice. LFB also welcomes the change made since the publication o f the draft Bill in terms of the role of the Building Safety Manager. Moving accountability to the Accountable Person rather than the Building Safety Manager will make the role much more attractive for building safety experts, help address concerns about liability insurance and therefore increase the chances of attracting quality candidates.
There are a number of issues that require further clarification at this stage in the legislative process to ensure that the Bill delivers on the ambitions of the Government to create a building safety regime that is fit for purpose.
Areas of change/clarification
Ensuring accountability for poor construction practice
LFB has experience of enforcement issues where developers open subsidiary companies or special purpose vehicles to be responsible for new development or refurbishment. That company is then closed down after completion of the project and the parent company rarely has any ongoing legal liability for the premises or remediation.
Although the Bill gives the Regulator stronger enforcement powers, including the option to prosecute individual directors and managers of buildings, in LFB’s experience that has historically been very difficult to do. It also still does not address the risk of delays to remediation work and leaseholders being left liable for all costs resulting from negligent work by developers and their contractors where the developer has ceased to exist. We recognise that the new regime is designed to reduce the chance of poor-quality buildings being constructed in the first place through changes to the planning process and the introduction of the new planning and building control approval gateways. However, there will remain cases where this is unfortunately not the case, including premises built, converted or renovated in the past or during the introduction of the regime. It will also still not address problems with buildings that are not currently in scope of the new regime, some of which will still represent a high level of risk.
This issue aligns with the legal requirement within the Bill for ensuring that all other cost recovery avenues are appropriately explored before costs are passed on to the leaseholder. If this issue is not addressed, there is a risk that legislation will allow the negation of a key avenue for cost recovery from developers.
LFB would welcome an amendment to the Building Safety Bill and the Regulatory Reform (Fire Safety) Order 2005 which ensures that, where a special purpose vehicle (SPV) has been established to undertake construction, conversion of renovation, legal accountability can be transferred to the parent/affiliated company if that SPV has ceased to exist or does not have sufficient resource to address building defects.
Clarifying the terms for buildings to be added to the scope of the regulator
We understand why limitations have been placed on the initial scope of the new Building Safety Regulator. However, there are still buildings which are not in scope which we believe present a high level of risk, such as high-risk occupancies like care homes. The Bill requires the Secretary of State to undertake a cost benefit analysis when making a decision on whether new buildings should be added into scope of the regulator.
It is unclear at present what the cost threshold will be and what Government will consider acceptable for new buildings to be added into scope. We would welcome early publication of the criteria for the cost benefit analysis to determine how decisions on scope of the Building Safety Regulator will be judged.
LFB would welcome a probing amendment requiring the Secretary of State to lay before Parliament the criteria and thresholds to be applied so that Parliament can be satisfied, on grounds of public safety, that the criteria and thresholds are acceptable.
Recalls on products where a company has ceased trading
The Bill should give consideration to what happens if a notice is served to recall a construction product, but the company has ceased trading or been dissolved. We would also welcome clarity on what arrangements will be put in place if there is a product recall on international products. One example is the issue that arose post-Grenfell with Manse Masterdor Ltd fire doors which needed replacing. In this case, the company were taken over and the matter was addressed. However, had this not been the case, then it is unclear how the matter would have been resolved and who would have been acountable. If a fault was found with a legacy product in widespread use, then traceability would also need to be considered.
Another concern would be if a widely used component/product within the fabric of the building needed remediation or replacement, leading to significant disruption and potentially the displacement of residents.In such a case, if the company involved was either not still trading or was not accountable in the UK, it is not clear what would be done or where the burdens or responsibilities would fall in such circumstances.
In addition, we recognise that there are mechanisms in place for recalls of construction products in the supply chain, which we understand may sit within the remit of the Office of Product Safety and Standards. However, we will be seeking to have a probing amendment tabled which provides clarity on who would be the responsible authority/government department for products that have been installed in a building and become subject to a product recall or corrective action (e.g. that may lead to remedial action or the mitigation of risk for products left in situ).
Clarity on where the duty lies to co-ordinate the response to legislative requirements where only parts of the building are subject to the Bill
It is not currently clear whether this duty is on the Accountable Person or whether it currently exists at all. For example, there does not appear to be a duty for an occupier of a non-residential part of a high-risk building to make their fire risk assessment available to the Principal Accountable Person to assist them in producing the safety case for the building. This could lead to situations where a Safety Case Report leaves out parts of the building, despite the fact that they might be fairly high-risk commercial use, such as a hotel or restaurant. We will be seeking to have a probing amendment tabled to provide clarity on this point.
Addressing issues around clients choosing their own Building Control Body (BCB)
While buildings within scope of the regime will no longer be able to choose their own BCB, there remains an issue for those which do not fall in scope of the new regulator. The practice allowing companies to choose their own BCB creates competition in terms of driving down price to win business which can have an impact on the amount of time BCBs spend reviewing proposals and undertaking site visits. This can reward those willing to carry out the least involvement and can lead to work below the standard that should be expected. LFB has also received reports that clients have ‘shopped around’ for a BCB prepared to agree a design i.e. ‘if you won’t approve it, we’ll find someone who will’.
Background Information
The Building Safety Bill needs to ensure that developers cannot avoid accountability for building safety
· Poor-quality construction in the built environment presents risks to lives and homes and needs to be addressed – everyone should feel confident they live in a safe home.
· London Fire Brigade continues to see evidence that the culture change required across the whole industry has not yet taken place.
· While the new legislation goes a long way towards the creation of a robust building safety regime in principle, the Government needs to be clear that those looking to avoid accountability for poor construction practice will be held accountable by legislation even if the SPV used for the development has ceased to operate or is insolvent.
Scope of the building safety regime
· LFB has concerns about how higher risk buildings are currently defined. A height threshold is too blunt an instrument to fully account for risk. For example, it is unclear why high risk occupancies such as residential care homes under the height threshold are excluded . Our recommendation is that type of occupancy should be a factor and that care homes should be included at an early stage.
· While the Building Safety Regulator is expected to keep the scope of buildings within the regime under review, the decision over whether to add buildings into scope is ultimately determined by the Secretary of State, who will be required to produce a cost benefit analysis. Transparency over the criteria for the cost benefit analysis will be essential so the parameters for how the building safety regime will operate in future are fully understood.
Funding the building safety regime
· The cost of London Fire Brigade’s Fire Safety Department has increased since 2017 as a consequence of what has been revealed about the built environment since the Grenfell Tower fire.
· To put the scale of the challenge into context, London has approximately 8,000 buildings above 18m in height and 47,000 buildings of 11-18m in height, which is approximately 55 per cent of the total national risk.
· In order for the legislation, including the Fire Safety Act which has not yet received a commencement date, to actually deliver the stronger, more effective building safety regime that is required in this country, it will need to be matched with funding to ensure that fire and rescue services can meet the scale of the challenge.
· London Fire Brigade has been allocated grant funding which is being used to support the Building Risk Review programme and to bolster other protection activities such as advising on fire safety, auditing and inspecting premises and bringing enforcement action .
· While this funding is welcome, in order to truly creat e a lasting, robust building safety regime, fire and rescue services must be able to plan their service delivery into the future through Government setting out a long-term funding settlement in the Comprehensive Spending Review . This will enable fire and rescue services to continue to protect residents in the face of a highly challenging and complex built environment .
September 2021