Stephen Workman is UK head of residential building design at AtkinsRéalis
Three years into the implementation of the Building Safety Act (BSA), the mechanisms designed to ensure safer buildings have been seen to undermine the government’s ambition to get Britain building.
The BSA was introduced with the right intentions, but in its current form it is creating unintended consequences. These include confusion around dutyholder roles, a lack of clarity in compliance expectation, and developers and investors pulling back from some schemes due to the regulatory complexity, in particular around higher-risk building (HRBs).
“The BSA was never meant to be a barrier to progress, but without urgent reform it risks becoming just that”
The Building Safety Regulator’s (BSR) performance is central to this issue as, while its remit is vital, its execution has been faltering.
The appointment of Charlie Pugsley as chief executive and Andy Roe as chair, along with the recent announcement of 100 new staff, is welcome and their early communications with the industry are encouraging. But capacity alone won’t solve the problem. What’s needed is clarity, consistency and collaboration.
Gateway two approvals, for example, have been sluggish; of the 2,078 applications submitted, only around a third have been approved, while almost half have been deemed invalid. The BSR has said it is focusing efforts in this area and that the legacy new-build backlog at gateway two could be cleared by January.
That would, of course, be welcome progress but the average gateway two application period nationally is 43 weeks and 48 weeks in London versus the 12-week statutory period. These are clear warning signs that the system has been stalling.
However, there are practical steps that can address these regulatory bottlenecks and ensure the BSA fulfils its aim of creating a safer system:
Defining roles and responsibilities
Bringing greater clarity to some of the dutyholder roles should be a priority as currently clients, principal designers and principal contractors say they remain unclear about their responsibilities, especially for non-HRBs. The solution would be to publish a clear, accessible guide, similar to Construction and Design Management (CDM) L153, which outlines dutyholder roles for all building projects where the Building Regulations apply.
Similarly, there is uncertainty around who can act as a Building Regulations principal designer (BR PD), especially in design-and-build contracts, where the vague language around “all reasonable steps” is deterring professionals from taking on this role. We are also seeing the appointment of third parties fulfilling this role even though that is contrary to the ambition for it. Again we would recommend the BSR and Health and Safety Executive issue definitive guidance on BR PD appointments to improve consistency and reduce disputes, as well as clear definitions and expectations around compliance declarations and liability.
Tackling inconsistency and ambiguity
In reference to evidencing compliance, this can be a subjective view, leading to inconsistent decisions and frustrating feedback. We would encourage early engagement with building-control bodies and the BSR before building-control applications are submitted, to reduce ambiguity and subjective views on interpretation. In addition, adoption of the RIBA Compliance Tracker as a national industry standard could be a practical step forward to help address the inconsistent information provided to building control or the BSR.
In regard to competency, this is down to each individual client to confirm, but we are seeing inconsistent interpretations from clients. Should more weight be put on professional body registers for competency, particularly in regard to HRBs? That could bring consistency to the competency levels of professions, particularly when working with smaller client organisations. We would suggest that a central authority, possibly under the chief construction adviser, should harmonise competency requirements.
Some clarity for healthcare facilities is also warranted, as they face unique challenges under the BSA, yet guidance is limited and overly complex. In response, there should be simplified, tailored guidance for healthcare settings to avoid delays in delivering vital infrastructure.
Further guidance is required to assist with the current ambiguity around the definition of an HRB. For example, a recent first-tier tribunal ruled that a rooftop garden did qualify as a floor, whereas guidance suggests it does not.
Improving and streamlining gateway guidance
Gateway two is a critical bottleneck and the BSR has been inundated with many applications that are invalid due to poor guidance and preparation. This could be resolved by introducing early and mid-point consultations with the BSR to review compliance criteria and to discuss the approach to compliance. The BSR is open to the concept, but as it is in the business of cost recovery, the current legislation would need to be amended to enable this to happen.
The industry has recently produced guidance around the level of detail required for a gateway two application. The hope is that this will address the concern around applications being invalidated.
In addition, gateway three – the final hurdle before occupancy of HRBs – remains poorly understood and requires detailed guidance on submission criteria to streamline approvals and reduce risk.
The cost of inaction
The BSR’s current performance is not just a technical issue, but also a strategic risk. If the government is serious about delivering 1.5 million homes, it must ensure that the regulatory environment supports development – especially since many of those homes will be in HRBs.
The BSA was never meant to be a barrier to progress, but without urgent reform it risks becoming just that. The plan for action outlined here is not about weakening safety standards, but about making them work in practice.
If the government wants to meet its housing targets, ensure buildings are safe and drive economic growth, it must continue to make significant progress to ensure legislation does not become the biggest obstacle to progress.
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