John Forde addresses the findings of Dame Judith Hackitt’s review of fire safety, and explains what their implementation could mean for the construction industry.
The government’s independent review of the building regulations and fire safety published its final report this month, Building a Safer Future. As expected, the report condemns the current regulatory system covering high-rise buildings as “not fit for purpose” and describes a failing building industry with a “race to the bottom” culture that prioritises profit over safety.
Chair of the review Dame Judith Hackitt proposes a “radical rethink” of the regulatory framework for high-rise buildings, which, if adopted, could have a profound impact on the residential development sector.
Somewhat surprisingly, the report doesn’t recommend a ban on combustible building materials in high-rise buildings. Hackitt contends that problems in the industry go beyond the specification of cladding materials, and broadens the analysis to look at four key issues:
- widespread ignorance about the building regulations and their interpretation by poorly-qualified people;
- a failure to prioritise safety in favour of doing things “as quickly and cheaply as possible”;
- a lack of clarity about responsibility and accountability for building safety; and
- inadequate regulatory oversight and ineffective penalties for wrongdoing.
In response, the report proposes a clearer model of risk ownership, more transparency of information about high-rise buildings, an enhanced regulatory framework with more severe penalties; and a “whole life” approach to monitoring safety in high-rise buildings. The building industry is encouraged to work together to implement “a truly robust and assured approach to building the increasingly complex structures in which people live” and rebuild public confidence in the system.
The report makes 10 key recommendations covering every aspect of the building industry, from procurement to post-completion building inspections. As yet, it’s unclear whether the government plans to enact all or any of the recommendations. Pending a formal response, here’s a snapshot of what the new building regime might look like.
Defined responsibility for safety
The report recommends a clear package of risk and responsibility, with requirements that those who procure, design, create and maintain high-rise buildings ensure that they are safe. The report encourages collaborative working between clients, contractors and designers, and criticises the outsourcing of liability to parties that may not be able to mitigate risks effectively.
Hackitt cites with approval the multi-party approach of partnering contracts as a way of achieving this collaboration. Developers may therefore be encouraged to allow direct contractual relationships between clients and the construction team, rather than relying on third-party collateral warranties.
It’s also possible that clients could ask developers to provide enhanced liability terms, rather than pure “developer” obligations.
Dutyholders
The report makes frequent reference to “dutyholders” that must take responsibility for the fire and structural safety of high-rise buildings, and make improvements over the building’s life cycle.
Dutyholders must also make regular reports to regulators (see below) to confirm that safety risks are being managed. It’s unclear which party in a development project would be a dutyholder. For social housing developments, this would presumably be the landlord, but it is possible that developers will be asked to contribute to or warrant ongoing maintenance and safety checks.
It’s less clear how the dutyholder model will work in private developments, especially where clients and developers sell the building post-completion and outsource maintenance obligations to third parties. It’s likely that developers would seek to time-bar any ongoing responsibilities of this nature, which otherwise may be difficult to fund and insure.
New regulatory body
The report recommends the setting-up of a single joint competent authority (JCA) to regulate and check fire and structural safety in high-rise residential buildings. The JCA would comprise local authorities, fire and rescue authorities and the Health and Safety Executive, and be independent from clients, designers and contractors.
The JCA would assess building designs (see below), review safety measures throughout the building’s life cycle, and respond to reports of safety risks. Serious penalties would be levied against those who “choose to game the system” and place residents at risk.
If implemented, JCAs could add significant time and cost to development projects for clients and developers, in addition to planning and other statutory requirements.
Gateways for building projects
Dutyholders for high-rise buildings would be expected to submit building plans to the JCA, and demonstrate they can account properly for the safety of the completed building. The JCA’s permission would need to be sought before building projects can move to agreed phases or to occupation. Significant changes to building plans would also need to be approved by the JCA before building could proceed.
If this is implemented, developers would need to consider how application costs would be apportioned, and how rejections of building and safety plans would be absorbed into building timetables.
Involving residents
The report recommends better resident involvement in decision-making through support of residents’ associations and tenant panels, and that residents should be given a “no-risk route” to escalate concerns on fire safety through an independent statutory body. If implemented, this could also create significant delays for development projects, and parties would need to consider how any time and cost delays as a result of resident complaints would be managed.
Updating building standards and guidance
The report criticises the current building regulations for being ambiguous and incomplete, and recommends new regulations and guidance that are “simpler to navigate” but reflect the complexity of building works.
Somewhat surprisingly, the report proposes that ownership of building standards and technical guidance rests with the building industry as “the intelligent lead in delivering building safety”, with oversight from a government organisation. As above, no recommendations were made about banning specific products, though the government has already announced plans for a public consultation on banning combustible cladding materials.
Revised testing and labelling regime
The report recommends a more effective product-testing and labelling regime, with better product traceability and periodic reviews of test methods and standards. The new regime would be underpinned by a “more effective enforcement, complaint investigation and market surveillance regime with national oversight”, though stops short of recommending a new national standards authority.
Digital record-keeping
Citing industry-wide failings in auditing and record-keeping, the report recommends a new requirement for digital records for all high-rise buildings, from initial design through to construction, and including any changes that occur throughout occupation.
Procurement
The report identifies procurement as the process that “kick-starts” the behaviours seen throughout the design, construction, occupation and maintenance stage of a building project.
There is heavy criticism of lowest-price tendering, which encourages a “race to the bottom” culture and prioritises cost savings over safety. Procurers are encouraged to consider best value and whole-life costing as an alternative to lowest-price bidding. Tenders for high-rise buildings will be required to set out how the solution will produce safe building outcomes, and these proposals must be tested during the tender evaluation process. If implemented, these requirements are likely to increase the time and complexity of tender exercises, the costs of which are usually borne by bidders.
Contract terms
The report repeats many of the recommendations of the 1998 Egan Report, Rethinking Construction (which Hackitt cites approvingly in her foreword), including collaboration between clients, contractors, designers and suppliers, though the report adds that accountability should not be “handed down” through the supply chain.
Contracts with low contractor margins and restrictive payment practices such as retentions should be avoided as they put pressure on the supply chain to save costs by using cheaper and unsuitable materials. The report also recommends that contracts for high-rise buildings state that safety requirements should not be compromised for cost reduction.
It’s unclear whether these recommendations will become legally enforceable or remain as best practice suggestions. Either way, developers may need to adopt their contracting processes to suit more collaborative ways of working, though this may have some commercial benefit if restrictive payments and penalties can be avoided.
The way forward?
It’s unclear how the government will respond to the report. However, the forthcoming consultation on cladding materials suggests that the government will, against Hackitt’s advice, cherry-pick the most high‑profile safety issues, rather than make the wholesale industry changes she recommends.
Main image: Rex/Shutterstock
John Forde is a senior associate in projects and construction at Trowers & Hamlins LLP
