Construction Update on Building Safety and the Golden Thread

New or Converted HRB’s

New or converted HRB’s will need to pass through three separate ‘gateways’ (stop / go decision points). The Building Safety Regulator will review the ‘golden thread’ at each of these gateways to assess the adequacy of the information being stored in respect of the relevant HRB. We note that:

• The first planning gateway came into effect on 1 August 2021 as noted here and referred to in our previous article here. The HRB’s currently in scope for the current planning gateway are those that contain two or more dwellings or are educational accommodation, and are at least 18m tall or 7 storeys. As this is different to the current draft regulations on HRB’s, it will be interesting to see how and to what extent the government brings the scope of the gateways within the Bill in line with the current planning legislation or any amendments to the same.
• The second gateway occurs prior to construction work beginning, and construction cannot begin until the Building Safety Regulator is satisfied that the dutyholder’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations.
• The third gateway is at the completion / final certificate phase where the construction work has been completed and the Building Safety Regulator assesses whether the work has been carried out in accordance with the building regulations. We note there may be some delay to the third gateway (i.e. practical completion) where the Building Safety Regulator is required to sign off on the building (by reviewing the ‘golden thread’) before it can be occupied. This could cause issues with delay and liquidated damages being applied, depending on the wording of the particular contract.

Existing HRB’s

There are separate obligations and roles to be undertaken in respect of those HRB’s that are already built (and/or in occupation) under the Bill.

In particular, the Bill places various duties and obligations on any ‘accountable person’ during occupation of an HRB, for example the accountable person must:

• regularly assess the building safety risks as regards the part of the building for which they are responsible.
• take all reasonable steps (including carrying out any works) to prevent a building safety risk materialising as regards the part of the building for which they are responsible, and to reduce the severity of any incident resulting from such a risk materialising.
• prepare a ‘safety case report’ containing any assessment of the building safety risks, and a brief description of any steps taken by any accountable person for the building. The HSE has released guidance on the type of information it expects to be within the ‘safety case report’. We refer to our comments in our previous article on the types of questions parties can ask themselves in respect of any existing information available in this regard;
• appoint a competent, named building safety manager to assist in the management and oversight of all systems and processes for meeting those obligations (although accountability remains with the accountable person). We also note that the framework of competence of Building Safety Managers has been released for consultation.

The government continues to issue ongoing updates and you can follow our comments on these at our Building and Fire Safety Hub, which includes a link to our timeline that comments on those matters relevant to construction.