Construction Industry

The Building Regulations (Amendments etc) (England) Regulations 2023 insert a new Part 2A into the Building Regulations 2010. This has requirements on clients to appoint designers and contractors who are competent and new duties for clients, designers and contractors. The legislation is here.

Bodies such as ECA will be working together with the Construction Leadership Council and Its constituent bodies to provide further industry guidance on these regulations and on how clients, principal designers and contractors and Accountable Persons can meet the new obligations in a safe, reasonable and proportionate manner. It is another step on the road to rebuilding trust in the construction and operation of our higher rise building stock, and another step on the road to building a safer future.

BSR Duty holder Regulations from 1 October

Regulations to implement the new building safety regime come into effect on 1 October, including important and widespread new duty holder roles.

The Regulations will help to implement the new building safety regime for England and Wales, and they apply to all building works. The new duty holder roles include ‘contractor’ and ‘principal contractor’.

It is very important to note that the new duties have widespread implications, and do not apply solely to higher risk premises (where there are additional duties).

To introduce the new duty holder Regulations, ECA has produced a summary of two fundamentally important new duty holder roles (contractor and principal contractor, other duty holder roles to follow). Please note these new duty holder roles are not the same as the roles (of the same name) required for compliance with the Construction Design and Management Regulations (CDM 2015). Read guidance here >

The Principal Accountable Persons (PAP) must show that they understand the buildings they’re accountable for. The idea is that the information they compile will assist them with their duty to assess the building’s risks as part of the safety case that they have to provide to the Building Safety Regulator.

The following area are likely to be relevant to ECA Members and may be an area of activity where information is requested by the PAP.

Fire and smoke controls

Evacuation strategy for the residential areas. This could be phased, progressive horizontal, simultaneous, stay put or temporary simultaneous. We do not need to know how you evacuate any non-residential parts.

Fire and smoke control equipment in the residential units. This includes heat or smoke detectors, and sprinklers or misters.

Fire and control equipment in the parts of the building shared by all residents. This includes alarms, dry or wet risers, smoke control systems, smoke detectors, and sprinklers or misters. We also need to know where these are.

Types of lift:

• evacuation lift

Evacuation lifts have structural, electrical and fire protection. They’re used to evacuate people with a disability or extra needs

• firefighters lift

Firefighters lifts have protection, controls and signals for firefighters to control it. The 2003 British Standard classifies these lifts.

• fire-fighting lift

Fire-fighting lifts are like firefighters lifts but less stringent. The 1986 British Standard classifies these lifts.

• modernised lift for fire service use

Modernised lifts for fire service use are normally used for passengers. But they have basic extra protection, controls and signals for firefighters to use.

• firemen’s lift

Firemen’s lifts were installed before fire-fighting lift standards were available. They have no complex lift controls or protection measures for firefighters to use.

Energy supplies, storage and generation

Types of energy storage for the building, like lithium ion or hydrogen batteries

• Energy generated on site

Types of energy supply

• On-site generation includes air source heat pumps, biomass boilers, or solar panels.
• Energy supply includes district heating, mains electricity or gas supply, or oil.

Building Safety Regulator (BSR)

From spring 2024, Building Control Bodies and Building Inspectors must follow mandatory codes of conduct and operating standards, and the BSR has published draft operational standards rules for Building Control Bodies (local authorities and registered Building Control Approvers). More information can be found on the BSR presentation here >

What is an Accountable Person and Principal Accountable Person?

Those who own or are responsible for managing high-rise residential buildings will need to appoint a Principal Accountable Person who will be responsible for applying to register their building with the new Building Safety Regulator. The register is expected to open in April 2023.
 
The registration process and the information required to complete registration is subject to secondary legislation being in place. However, there is some information on the roles of Accountable Person and Principal Accountable Person so individuals and organisations that take on these responsibilities can prepare and be ready.
 
Accountable Persons (APs)
 
APs are people legally responsible for repairing common parts of a building, for example the exterior and structure of the building or corridors or lobbies. They may be an individual, partnership or corporate body and there may be more than one AP for a building. Where there is more than one AP for a building, the AP that owns or is under obligations to repair the exterior and structure of the building will be recognised as the Principal Accountable Person.
 
Principal Accountable Persons (PAP)
 
The PAP will have the following primary duties:

• register their building with the Building Safety Regulator
• when directed by the BSR, apply for a Building Assessment Certificate and display it in the building
• prepare a Safety Case Report using the risk assessment and provide this to the Regulator, updating it as required to ensure it is complete, accurate and sufficient
• maintain and manage the important information necessary for managing the building safely - the ‘golden thread’
• develop a resident engagement strategy and complaints procedure
• report certain occurrences, such as fires, to the Building Safety Regulator, in the form of mandatory occurrence reports

More detailed guidance on APs and PAPs roles and their legal responsibilities will be made available by the HSE in the coming months.

Building Safety Regulator outlines purpose of golden thread of information

IN ORDER to ensure that duty holders identify, understand, manage and mitigate building safety risks throughout a given building’s lifecycle, those responsible for building safety must now retain a ‘golden thread of information’. The Building Safety Regulator has produced a detailed synopsis of what the entire process entails.

The purpose of the golden thread is to have the right information in order to understand the building and the steps needed to keep both the building and the people living within safe at all times. It will hold the information that those responsible for the building require in order to: 

• show that the completed building – and any later building work – meets the requirements of applicable Building Regulations
• identify, understand, manage and mitigate building safety risks so as to prevent or otherwise reduce the severity of the consequences of fire spread or structural collapse throughout a building’s lifecycle

Having a golden thread in place means that ‘Responsible Persons’ will have easily accessible, reliable, up-to-date and accurate information to hand. Without such information, it’s then very difficult to manage buildings safely. The golden thread content is the information any duty holder needs to enable them to both fulfil – and ably demonstrate that they are carrying out – their legal duties.

The introduction of a golden thread of information for buildings was a recommendation made by Dame Judith Hackitt in the ‘Building a Safer Report’ published subsequent to the conclusion of the Independent Review of Building Regulations and Fire Safety designed to support duty holders in designing, constructing and managing their buildings as holistic systems.

Digital records

In essence, the golden thread involves keeping a digital record of crucial building information, starting from the design phase and continuing throughout the building’s lifecycle. The Government has decided that the golden thread of a building’s information must be stored in a digital format, but this can be on multiple systems.

The golden thread comprises two parts: building work and maintenance. This ensures that any modifications or enhancements to the building are accurately documented and enables building owners to proactively identify potential risks or hazards and then take corrective action.

The important element is that those who are responsible for the building know where up-to-date information may be located and can grant access to this detail for those who need it. This includes anyone responsible for maintaining or working on the building and other relevant groups, such as residents and emergency responders.

The golden thread needs to be created before building work starts and the information must be kept updated throughout the design and construction process (for example where – through the change control process – the plans for the building work are altered).

When the building work is completed, the golden thread must be handed over to the ‘Accountable Person’ who’s responsible for the occupied building.

Crucially, by maintaining an accurate and up-to-date source for all building information, this ensures that building owners can better manage their buildings and optimise safety.

‘Single source of truth’

A given building’s information must be kept digitally and securely as the ‘single source of truth’. It must be made available to those who need this information to complete a job and when it’s needed. It must also be presented in a way that renders it easy to use.

Essentially, the golden thread is all about the right people having the right information to hand when they need it. The right people are those who require the information to carry out a function. The right information means that it’s presented in such a way that the receiver can use it. The right time is all about when the information will add value.

Each golden thread will be individual, bespoke and specific to the building and group of residents and occupants.
Who’s responsible for the golden thread? During the design and construction phase, the duty to keep and manage the information thread rests with the duty holder. This could be the client, the principal contractor or the principal designer.

During occupation, the ‘Accountable Person’ is responsible for co-ordinating the golden thread, keeping it updated and ensuring that it’s accurate and accessible. If at any time they cannot find this information, then they need to be able to justify why this is the case.

The ‘Accountable Person’ may be an individual, partnership or corporate body and there may be more than one ‘Accountable Person’ for any given building. If there are multiple ‘Accountable Persons’ then the ‘Principal Accountable Person’ will take lead responsibility for the golden thread.

Where the building already exists, the ‘Accountable Person’ will need to make reasonable enquires to find the information that allows them to assess and manage the safety risks of fire spread and structural stability.

When a building is being refurbished, this may involve the duty holder, the ‘Principal Accountable Person’ and the ‘Accountable Person’ as many buildings will remain occupied during refurbishment.

Planning Gateway One (PGO) updates

Planning Gateway One guidance has been published. This publication intended for local planning authorities (LPA), applicants and other technical specialists involved in the design and consenting of high rise residential and educational accommodation buildings at the planning stage has been published.  It outlines what Planning Gateway One (PGO) is intended to achieve, how it works, the relevance of fire safety matters at the planning stage and provides information about using the pre-application service. ECA members may find this update useful to help anticipate input that will be required from them by a client.

It is set out in seven sections:

Fire safety design can have a profound effect on planning matters. For example, the number and configuration of escape stairs and protected routes will usually be significant factors that determine the shape, appearance, and layout of the development, and how it relates to and affects neighbouring properties and uses. This in turn will impact on firefighter access, access for fire appliances and access to water for firefighting.

The level of detail contained in a full planning application varies but will usually include:

• vehicular, bicycle and pedestrian access in and around the site,
• access arrangements for buildings in a development,
• details of car and cycle parking provision,
• basic landscaping details such as areas of hard and soft landscaping and paths,
• details of the external appearance of the building including balconies,
• the location of firefighting shafts, lifts and escape stairs,
• the location of ancillary accommodation such as plant rooms, refuse stores and cycle stores,
• the location of vents and ducts for smoke control systems,
• the location and number of residential units and their access arrangements, and
• the location of non-residential uses e.g.  gyms, retail units, cafes, and their access arrangements.

How these different factors manifest and interact with each other will influence fire safety design. These are matters that will be fixed if planning permission is granted. The purpose of PGO is to avoid poor fire safety design in relation to these matters being “baked in” at the planning stage.

Services and utilities

High-rise buildings will have several utilities such as electricity, water, gas, telephone, and internet connections. Some buildings are built with alternative energy sources such as solar panels. These can also be added later.

Duty holders will need to gather information about all connected services and utilities, and include details such as:

• where the supply enters the building
• where and how it can be isolated
• the name and contact details of the supplier

You should also identify:

• where the supplier's responsibility for maintenance starts
• who undertakes maintenance and repairs on their behalf
• Mark plant rooms and incoming supplies on building plans. Identify pipe and cable routes.
• If individual flats are supplied with gas, identify the pipes feeding the internal network. 

This will allow the duty holder to consider their impact on common parts of the building or evacuation plans.

Services and utilities, including ducts and pipes, will pass through compartment barriers such as walls and floors. Compartments are fire-resisting enclosures which provide fire separation between parts of the building to prevent the spread of fire.

Duty holders also have to seek assurance that fire stopping has been completed to an appropriate standard so that compartmentation isn't compromised. Duty holders may well seek support from ECA fire safety specialist members.

Getting assurance will give confidence in one of the key fire spread controls in high-rise buildings. If they identify problems, it will allow them to consider what they need to do to gain the assurance needed. Further information is available here.

Independent Review of the Construction Product Testing Regime

A government-commissioned review of the construction product testing regime was published in April 2023. Written by former construction advisor Paul Morrell and legal expert Anneliese Day, it says mandatory licensing could help ensure buildings are constructed safety in a post-Grenfell era.

The review advises ministers to consider whether principle contractors should be required to obtain a licence before carrying out work. The Department for Levelling Up, Housing and Communities said proposals will be set out in due course.  

Testing for a Safer Future: An Independent Review of the Construction Products Testing Regime

This review construction product regulation to provide an understanding of what needs to change before products are placed on the market – and, crucially, before they are placed in buildings. It asks how product users can make informed choices about fitness for purpose and how, through the right processes, diligent oversight and the principles of transparency and accountability, there can be confidence that products are selected, handled, installed, operated and maintained against clear and verifiable Declarations of Performance.

Building Safety Competence

Under the Building Safety Act, anyone appointing an individual or organisation to undertake design and construction work has a duty to ensure they are competent. For individuals this means having the appropriate skills, knowledge, experience and behaviours, whilst organisations must demonstrate ‘organisational capability’, and the Building Safety Regulator (BSR) has now published guidance to help clients, contractors and designers meet the competence requirements for their roles. It explains what each dutyholder has to do, the documents they have to produce or assist with, and how they can demonstrate competence. The guidance is here.

Submitting mandatory occurrence notices and reports

A guide for principal designers, principal contractors and accountable persons to report incidents or risks of structural failure, or the spread of fire to the Building Safety Regulator. The link to the HSE guidance is here.

New regulations for high-rise buildings

The Building Safety Act 2022 created a new regulatory regime for ‘higher-risk’ buildings, that is buildings that are 18 or more metres in height or have seven or more storeys and contain at least two residential units. It will apply to residential buildings (such as blocks of flats), care homes and hospitals during design and construction.

During occupation, it will cover only residential buildings.   

During design, construction and refurbishment From October 2023, the BSR will oversee the building control approval process for all higher-risk buildings. These buildings will also have to pass through a more rigorous process consisting of three gateway points:

• Gateway 1: Fire safety is considered as part of the planning permission process. Since August 2021, the local planning authority has been required to consult the Health and Safety Executive on planning applications for higher-risk residential buildings. 

• Gateway 2: From October 2023, building work on higher-risk buildings will only be able to start after the developer has approval from the BSR. The BSR will also carry out regular inspections during construction.

• Gateway 3: From October 2023, higher-risk buildings will only be allowed to be occupied after the BSR has checked that the building work is compliant and has issued a building control certificate. 

During occupation For higher-risk residential buildings (but not hospitals and care homes), the government also created the role of the ‘accountable person’. The role will usually be fulfilled by the building owner or the person responsible for the building’s maintenance. They will be responsible for assessing and managing ‘building safety risks’ during occupation. The accountable person will be required to register their building with the BSR. The BSR will ‘call in’ registered buildings at regular intervals to make sure the accountable person complies with their duties to regularly assess and continuously manage building safety risks.

Extract from ‘Building regulations and safety’ House of Commons Research Briefing 6 June 2023.

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations come into for on 6 April 2023. They follow public consultation in 2022 and, though still subject to parliamentary approval, they seem unlikely to change further. Read the Regulations, which will apply in England and Wales, here.

There is also an Explanatory Memorandum here.

In particular, the Regulations affect section 120D of the Building Act 1984 and section 65 of the Building Safety Act 2022  (below - “1984 Act” means the Building Act 1984, while “2022 Act” means the Building Safety Act 2022). The new Building Safety Regulator will enforce the new regulatory regime, overseeing compliance with the 2022 Act and related regulations when they are in force.

S.120D of the 1984 Act (inserted by s.31 of the 2022 Act) defines “higher-risk building” for the part of the new regime regulating building work (building design and construction). For this part of the regime: a higher-risk building is: “of a specified description that is at least 18 metres or has at least 7 storeys”.

Section 65 of the 2022 Act defines “higher-risk building” for the part of the new regime that regulates occupied buildings. For that part of the regime, a higher-risk building is: “at least 18 metres in height or has at least 7 storeys and contains at least 2 residential units”.

Such buildings (unless exempted see below*) will be subject to the design and construction requirements while being built and will then be regulated under the in-occupation requirements once completed.

Regulation 2: Specifies that hospitals, care homes and buildings containing at least two residential units will fall within the design and construction part of the new regime - where they are over 18 metres tall or have 7 or more storeys. 

Regulation 4: Defines “building”.

*Regulations 7 and 8: Exclude certain types of buildings from the definition of “higher risk building”. Hotels, secure residential institutions (e.g. prisons) and military premises (e.g. barracks) will be excluded from both parts of the new regime. (Hotels and secure residential institutions are already regulated by the Fire Safety Order.)

Additionally, hospitals and care homes will be excluded from the in-occupation part of the new regime.

‘Higher risk buildings’ under the Building Safety Act 2022 (BSA 2022)

Graphic showing what is currently described as a higher risk building under the Building Safety Act.