The Bill cannot come soon enough as our broken building safety system needs reforms to be enshrined in tough new legislation. Residents have a right to be safe and to feel safe in their own homes, and the construction industry and those with legal duties now need to deliver the cladding remediation work required.
- The LGA welcomed the introduction of the Building Safety Bill for pre-legislative scrutiny in the last Parliamentary session. We are confident that it will strengthen the building safety system in the UK, especially in relation to new buildings. It is, therefore, an important step in the right direction.
- The Bill cannot come soon enough as our broken building safety system needs reforms to be enshrined in tough new legislation. Residents have a right to be safe and to feel safe in their own homes, and the construction industry and those with legal duties now need to deliver the cladding remediation work required.
- Important elements of the Bill remain undecided. The precise nature of the Building Safety Manager (BSM) role and how to make this practically deliverable has yet to be decided and the Government needs to determine how to ensure that the Accountable Person (AP) has the levers to deliver the safety for which they are responsible.
- As set out in the LGA’s position statement on leaseholder costs, no leaseholder should have to pay the costs of making their home safe. Residents, leaseholders, freeholders who have purchased buildings in good faith, council taxpayers and housing associations should not be left to pick up the pieces of the broken building safety system.
- Government needs to fund a recovery programme in the housing sector and the developers and product manufacturers who have profited from providing inadequate buildings should be required to pay their share of the costs. Social housing providers will also need to be protected from these costs if they are to provide the housing the nation needs and improve existing housing to the standards Government wants.
- Since the draft Bill’s publication, we have become concerned about the conflict between its provisions, particularly regarding the Gateways, and the proposals in the Government’s Planning White Paper, especially in relation to Permitted Development Rights.
- There is also a lack of expert capacity to address safety issues. This includes a lack of fire engineers, a shortage of surveyors and assessors with sufficient knowledge of both high-rise structural safety and cladding systems, and the difficulty in obtaining Professional Indemnity Insurance experienced by those who do have expertise in these areas. This lack of capacity could delay the implementation of the Bill and limit its scope. The UK needs to invest in addressing this skills shortage as soon as possible.
- We are concerned that the scope set out in the Bill is inappropriate as we think that determining risk on height alone is too simplistic. Building safety is not only an issue for buildings over 18 metres which is why a risk-based approach, which considers the vulnerabilities of residents, is required.
- Councils and fire services will have a vital role to play in delivering the new building safety regime. The government needs to ensure this role is fully funded.
Building Safety Bill
- The LGA has worked with officials drafting the Bill and we have been consulted on the issues it covers. The Bill is only part of the proposed new system, and key aspects will be detailed in secondary legislation. The ongoing reform of the Buildings Regulations Guidance (Approved Documents) and the Fire Safety Bill will have key roles to play in making sure buildings are safe.
- On paper - and dependent on the necessary secondary legislation being passed and sufficient funds provided - the Bill provides the strong regulatory system needed to implement the recommendations of Dame Judith Hackitt’s review and learn the lessons of the Grenfell Tower fire. Nevertheless, we have concerns in the following areas:
The difficulty of funding building safety measures without bankrupting leaseholders.
The conflict between the new building safety system and the Government’s planning white paper.
The scope of the Bill, the speed at which its scope can be expanded and the constraints on its expansion.
How the charging provisions in the Bill will work and set-up costs for the Building Safety Regulator.
The alignment of this Bill with the Fire Safety Act.
The adequacy of the product safety provisions.
The limited removal of competition in building control.
The balance of power cost and accountability in framing the roles of BSM and AP
- At the current rate of progress it will take well over 20 years to remediate all the residential buildings over 18 metres. There is currently no financial provision to meet the cost of remediating buildings under 18 metres, although the Government has promised loans.
- Until buildings with dangerous cladding systems are fixed, those who own flats in them face spiralling costs. They are living in buildings that are dangerous, with all the fear and anxiety that produces. The long-term mental health impact of prolonged anxiety about their safety and the financial security on thousands of people must not be underestimated. Without a solution, the health and social consequences will be long-lasting.
- The industry and the Government must take responsibility for the consequences of their failings. It is unjust to leave leaseholders to bear the cost of remediation. Leaseholders bought their property in good faith, unaware of the failure of the regulatory system for building safety, or the possibility that some product manufacturers were misrepresenting dangerous materials as safe. Unlike the product manufacturers, contractors, developers and designers who had a responsibility to know what the building regulations required and to deliver buildings that complied with them, leaseholders are blameless.
- Not only is it unfair that leaseholders should be made to pay, it is economically damaging to try and force them to. The cost of major safety works such as the replacement of cladding systems is likely to be beyond the means of most leaseholders. This means that attempts to make leaseholders pay are likely to make them default on their mortgage and become homeless, with all the social cost that this entails, leaving still-dangerous, now empty, blocks behind them. Councils will be left to pick up the pieces and provide accommodation, while private blocks lie empty and unsellable, undermining regeneration projects.
- The scale of the cladding crisis could well be large enough to seriously damage the housing market and pile yet more pressure on the post-COVID economy. The EWS1 problem is preventing many leaseholders selling their flats, meaning tens of thousands of flat owners who would otherwise be looking to upgrade to a family home will instead be unable to move, preventing those from whom they would buy their next home from moving on in turn.
- As set out in more detail in the LGA’s position statement on leaseholder costs, we are calling on the Government to:
- Re-commit without delay to protecting leaseholders, extend this support to social housing, in order to avoid the need to increase rents to pay for the remediation works and make it clear that this means funding the remediation of all dangerous cladding systems in residential blocks over 11m.
- Commit to begin assessing buildings under 18 metres no later than the end of 2021. Fire and Rescue Services are currently on course to consider every residential building over 18 metres by the end of 2021. Once that process is complete, the aim should be that high priority buildings under 18 metres should be considered in 2022, with a return to business as usual Fire and Rescue Service inspections during 2023 (most lower priority residential buildings would not normally receive fire service inspections). This will require continuation of the funding available for the current programme into 2022-23.
- Instruct owners of all buildings with cladding that they must establish the materials used in their systems as soon as possible. We know there is a shortage of assessors who are insured to conduct fire risk assessments for buildings over 11m, but this must not become an excuse for owners to do nothing to establish the basic make-up of their cladding systems.
- Set owners clear deadlines for remediation work. It is not the role of the LGA to say what these deadlines should be but, bearing in mind the point above, we suggest the need for a target time limit between:
- a) the identification of a problem and the commencement of work; and
- b) the identification of a problem and the completion of work.
- Continue monitoring the capacity of the relevant professions to identify barriers to this timetable and quickly institute the training and recruitment necessary to resolve them (and resolve any professional insurance issues).
- Establish a task force to take forward legal action against those responsible for the cladding crisis AND/OR commit to a levy on the relevant parts of the building industry in the next budget.
- Commit to establishing a residential building safety equivalent to Flood Re by the end of 2021.
- Push forward with the establishment of the Building Safety Regulator and the system proposed in the Building Safety Bill to ensure we cease to build bad buildings.
- This should enable the overwhelming majority of buildings with dangerous cladding systems to be remediated in the next five years. Many will say that taking most of a decade to resolve the issues exposed by Grenfell is far too long. We suggest that without a concerted and focused effort it will take much longer, cost much more and leave a far more damaging legacy. That would be unacceptable.
- Unless these measures are taken - or some better approach to achieving the same ends developed – the current crisis will drag on without an end in sight. Not only would that be a grave injustice to leaseholders but a cause of greater economic damage than recognising the problem and facing up to it now. The LGA believes it is a matter of when these measures are adopted, not if – and the sooner the better.
Planning White Paper
- As the explanatory notes accompanying the Building Safety Bill make clear, ensuring new buildings are built to an acceptable standard depends on the system of ‘Gateways’. These are to be achieved through secondary legislation and statutory guidance under the Town and Country Planning Act 1990.
- Despite their absence from the Bill, these Gateways sit at the very core of the new system. They provide the regulator with an opportunity to ensure new buildings meet the right standards and without them it will be difficult for the Building Safety Regulator to prevent more dangerous buildings from being constructed.
- At Gateway One, the Building Safety Regulator will be a statutory consultee in the planning process and will require those submitting planning applications to include a Fire Statement demonstrating that ‘fire safety requirements which impact on planning considerations have been considered at an early stage and incorporated into the proposals’. This would include issues such as fire engine access, water supply, and the effect on neighbouring buildings in the event of a fire.
- However, we are concerned that has already been undermined by changes to the Permitted Development Rights (PDR). The explanatory note states that under PDR, a building will bypass Gateway One and go straight to Gateway Two when the regulator approves the start of construction work on the basis of a study of the detailed plan.
- As the reforms envisaged by the Government’s Planning White Paper remove the existing planning application process for individual buildings, we assume that Gateway One is also removed – at least as far as it is described in the explanatory notes. In the absence of a planning application stage, it is unclear who the duty to submit a fire statement would fall upon and at what point the requirement to do so would be triggered. As stated above, the Government’s approach to these questions in relation to Permitted Development Rights has been to abandon Gateway One.
- This raises the question of whether a fire statement can be required and the issues in it addressed at Gateway Two. We understand that is the intention in respect of PDR. This would still be less effective than the original Gateway One approach.
- The existence of Gateway One means that developers must engage with the regulator at a very early stage. This is in everyone’s interest and reflects international best practice. The possible effect of the Government’s planning reform is that unexpected detailed plans will arrive at Gateway Two. These will be the result of a considerable amount of work which will be expensive to change and could all be wasted if the regulator decides the building simply cannot be built where it is proposed, a rare but possible outcome at Gateway One.
- We set out our concerns regarding Gateway One and its conflict with the Planning White Paper in our evidence to the Housing, Communities and Local Government (HCLG) Committee’s pre-legislative scrutiny of the draft Building Safety Bill.
- We understand the Government wishes to preserve the benefits of Gateway One, but it is important to stress that if it fails to do so it risks undermining the entire regulatory system of which the Bill is part. If a means is found to retain the benefits of Gateway One, despite the proposed changes to the planning system, we urge the Government to ensure those benefits also apply in relation to developments under Permitted Development Rights.
Scope of the Bill and capacity issues
- One of the challenges we are most concerned about in building safety is the lack of expert capacity to address safety issues. This includes a lack of fire engineers, a shortage of surveyors and assessors with sufficient knowledge of both high-rise structural safety and cladding systems, and the difficulty in obtaining Professional Indemnity Insurance experienced by those who do have expertise in these areas. This lack of capacity could delay the implementation of the Bill and limit its scope. The UK needs to invest in addressing this skills shortage as soon as possible.
- We are also concerned that the scope set out in the draft Building Safety Bill is inappropriate. While we have no doubt that the Government intends to extend the scope over time, there is no requirement to do so in the Bill and this needs to be addressed.
- The current scope for defining higher risk buildings as those over 18 meters or six storeys is too simplistic. Height is one factor in determining risk. Others include issues such as the vulnerability of occupants (care homes tend to have a large proportion of residents who cannot self-evacuate, for example); the number of protected means of escape; the provision of fire alarms; and the means of construction.
- The problem with the height-based approach is not only that it will omit a number of dangerous buildings from the scope of the regulator, but that it will include a number of less dangerous ones. This will use scarce resource unnecessarily which could be deployed to life-saving effect elsewhere.
- For example, the current scope would not have covered the Cube student residence in Bolton. In December 2019, the flammable cladding at the Cube rendered the only staircase untenable within half an hour and a resident was rescued from the top floor of the building moments before the flat from which she was rescued was destroyed by fire. This suggests that had the fire taken place later in the evening when more residents were asleep, it would probably have resulted in fatalities.
- Whatever approach is taken to scope in the Bill, we are concerned that its passing may breed complacency and that the current intention to expand the scope over time may not be sustained. Although we would prefer a more sophisticated approach to risk, we would like to see a firm commitment on the face of the Bill to extending the scope at the very least to all care homes and all residential blocks over 11 meters within a clear timescale.