Cutting Through the Confusion of the Building Safety Act

The introduction of the Building Safety Act brought such a paradigm shift to our industry that duty holders are still embedding new strategies and policies to meet it.  While the industry is supportive of the Act and can clearly see the positive outcomes it brings, its implementation so far has created pockets of confusion and frustration. This has been exacerbated by a new approval process still being fully understood by duty holders and the Building Safety Regulator.

One of the major shifts brought about by the Act was related to competency, which is no longer just a choice – it is now a legal requirement. It is not enough to just “be aware” of new regulations; organisations need to be able to prove they are not a threat to compliance. Where companies could once demonstrate they were competent as an organisation, the onus is now on proving it at the individual level for every person who contributes in some way to the safe use of a building, both during and after construction. To meet this requirement, Baily Garner created a framework to benchmark the competency of all our staff in their respective fields. It is a benchmark that shows we are holding ourselves to a higher standard of building safety, and one of the key reasons we became one of only 16 companies in the UK to be granted Building a Safer Future Champion status, at the start of this year.

As well as ensuring we can demonstrate competency in line with the Act, we also see it as our professional responsibility to step up as leaders and provide support and clarity to the wider industry.

Understanding roles and responsibilities

It is difficult to achieve clarity when the naming conventions under the Building Safety Act and the Building Regulations create confusion, as our Associate Partner, Tom Cadman, addressed in his article in the RICS Built Environment Journal:

“There is widespread confusion, given that the term ‘principal designer’ mirrors the CDM 2015 duty holder role, while the language used in the Part 2A amendment to the Building Regulations explaining the functional requirements of the roles is similar in parts to CDM 2015, which requires the respective principal designers to ‘plan, manage, monitor and coordinate’ their schemes.”

This lack of clarity and the seemingly overlapping duties have not only complicated compliance efforts but have also potentially increased the risk of non-compliance due to misunderstandings within the scope of responsibilities held by each role. The intention behind these changes might be to streamline processes and enhance safety and compliance, but the execution has fallen short of the mark.

The antidote to this problem is to increase the knowledge of duty holders throughout the industry, and Baily Garner has taken an active role in this endeavour through delivering a comprehensive programme of CPDs on the Act. We’ve delivered these workshop style sessions to client development, repair, compliance and investment teams, covering (among other things) what determines a high-risk building (HRB), the roles, responsibilities and competency requirements of duty holders, the gateway requirements for HRBs, and the golden thread – with real-life examples to help illustrate each topic. The feedback has been overwhelmingly positive, with clients recognising the real value of cutting through the noise and getting practical, actionable guidance.

A new advisory role?

Despite ongoing CPD sessions, conferences, presentations and newsletters, a uniform level of understanding around the duties and responsibilities mandated by the Building Safety Act has not yet been achieved. Implementing change in our industry takes years, as seen with the CDM Regulations, which at times are still misunderstood even a decade after the 2015 revision. Some in our industry still refer to the CDM Coordinator, a role that became obsolete when the revised legislation introduced the CDM Principal Designer. The industry responded to the gap in knowledge with the CDM Adviser role – designed to help clients and other duty holders understand and comply with their responsibilities under the new regulations.

We are seeing the same trend right now and have observed differing interpretations of the Act and updated Building Regulations, both in terms of HRB’s and non-HRB’s. While the potential risks associated with non-compliant HRBs is greater, understanding what constitutes ‘building works’ to an existing HRB is often debated with clients. Further confusion can arise from uncertainty over determining whether a building is an HRB, and the requirement to understand complex guidance on assessing height, below ground spaces and how buildings are accessed by residents or for maintenance. The appointment of duty holders, even on non-HRB’s, and ensuring they have the correct competence is also often overlooked. These issues beg the question: Is there a need for a new support role, created in the same vein as the CDM Adviser, to assist clients with compliance?

The legal responsibility to comply with the Act and updated Building Regulations sits with the client, but with the assistance of a third party, we believe the likelihood of unclear or incomplete applications at Gateways 2 and 3 – to which the BSR attributes most delays and refusals, would be significantly reduced. For example, the definition of ‘taking all reasonable steps’ can be debated, but it is essential to carry out assessments to determine the level of organisational and individual competence, to ensure the professional team is competent to carry out the project. By reviewing and commenting on the suitability of potential duty holders and advising clients accordingly, a ‘BSA Adviser’ of sorts could help reduce the risk of a non-compliant design, while also providing evidence to substantiate competence.

A call to action for the industry

The reality is that many older buildings in our country don’t meet modern safety standards, and while the Building Safety Act provides a comprehensive framework and oversight mechanism to remedy this, it’s also one of the most complex regulations with which the industry has ever had to comply. Just as importantly, the country faces a monumental housing crisis, and although it is one of many reasons for construction delays, helping clients surmount the regulatory hurdles created by the Act would undoubtedly assist in increasing supply.

While the finer details around the service a BSA Adviser will provide need careful consideration, our industry needs professionals who aren’t afraid to speak honestly and act decisively. We are committed to leading the way in this initiative, for the sake of improved standards, safer practices and much needed affordable homes.

This article was originally published by GoldenThread.Net: Issue # 1 – Golden Thread