Q: In terms of building safety in the UK, what do you think are the biggest challenges for building services professionals and building engineers going forward?
Richard Harral (RH): “The first challenge is procurement. Clients set the conditions for success or failure at the start of the project by determining the way they procure. We have an industry that’s been optimised to focus on lowest price as a result of 40 or 50 years of clients trying to drive capital cost down without regard to other value or quality-led indicators. That has created a very difficult environment for people to do the right thing to go beyond the minimum, and until that changes it’s going to be much harder for engineers and others working in the industry to change outcomes.
“Connected to that are construction products. We have the Morrell report (www.is.gd/wakale), an independent review of the construction product testing regime, which suggests that in order to have a construction products regime that people can trust, there are a series of further steps that need to be taken beyond those that were proposed in the Building Safety Act. It’s very difficult for engineers and others to interrogate in detail every aspect of product information, but that information is fundamental to the decisions they make. Until we get a bit further down the road in terms of reforming the reliability and robustness of the construction product testing regimes, that is going to remain a challenge, and engineers are going to have to remain particularly diligent in testing the assumptions that underpin those decisions.”
Hywel Davies (HD): “Also, how much of the construction products piece could be digitalised? The regulator is looking to create the framework for the golden thread and that is supposed to be digital, but how’s that going to work? Is it just going to be the 12,500 higher-risk buildings or are we going to find that blue chip clients say ‘actually, I want a digital record for my asset’.”
Q: Is there a role for digital information management in the new regime?
HD: “Absolutely. It’s going to be a statutory requirement for HRBs [higher risk buildings] because they will have to have and maintain the so-called golden thread of information. For HRBs, they will be required to keep a core set of information about their building up to date, accurate, secure and easily transferred to other parties who are entitled to it. So, you have got a multi-use building that’s got some residential, a hotel and some retail [stores] in it as well as different responsible persons and a principal accountable person. There’s a lot of information flows and that’s expected to be done electronically. The golden thread isn’t just for HRBs; it’s where we should be going with pretty much all buildings, but certainly in the commercial sector, it should really be business as usual.”
Q: The Building Safety Act is the biggest shake-up of the system of building regulations since World War 2. Can you explain just how far reaching it is?
RH: “The act requires having systems in place to manage competence, which means assessing people’s understanding of what they can and can’t do. It means having processes in place to maintain and develop competence over time and having the right systems in place to allocate competent people to do tasks as they come up, so you get the right people doing the right job. You’ve also got a series of duties to communicate and collaborate and to share information as well as a series of duties to walk away if you don’t believe building work is compliant, whether you’re a designer or a contractor.
“The second issue I would flag [up] as the big change is having a regulator who’s going to be active in the marketplace. We’ve worked in the construction industry for decades, where enforcement on building regulations matters has been incredibly rare, to the point of almost being non-existent. We know that the building safety regulator as part of the HSE sees enforcement not just as something that’s normal, but absolutely essential as a day to day part of their work. They have a duty and a series of powers also to make recommendations to their sponsor department if they think that the system’s inadequate. So, if they’re not seeing enforcement taking place in the way that they wanted to or the way that they believe is necessary, I think they’re going to start to push to change the system. But what we can certainly expect early on is for the building safety regulator to test its enforcement powers. I suspect they will look for local authorities to support both financially or to underwrite prosecutions to strengthen case law and set the tone.
“Arguments have been settled historically through a transactional set of relationships, so people should start to expect to see a lot more in terms of formal enforcement over time. The building safety regulator is going to work as the HSE does. It’s going to be joined up and intelligence-led, so that means it will be looking to identify repeat bad actors that keep cropping up, and it’s going [to] start targeting them with the very extensive regulatory investigative powers that it has under the act.”
Q: What are the changes for residential buildings or HRBs that the Act is bringing in?
RH: “For design and construction, the new higher risk building regime creates a much more rigid and challenging procedural framework to drive higher levels of compliance and is focused on safe outcomes. The gateways are what we refer to as ‘hard stop’ gateways, so you can’t proceed beyond those points until you’ve got an agreement with the Building Safety Regulator that what you’re doing is right. There is an enormous amount of procedural and systemic reformulation of how you need to operate to evidence what you’re doing at those gateways. Between Gateways 2 and 3, which are the pre-construction stage and the occupation stage gateways, there are a series of mandatory occurrence reporting requirements and change-control procedures that are going to be really challenging for the industry, but which are there to address specific problems. The change-control process, for instance, is there to address product substitution or cost-driven modifications to design and specification during the construction phase.
“This is a system that is intended to make it really painful to make wilful choices in that period. There is a whole series of other procedural documentation that you have to comply with: the golden thread, building control plans, [and] construction control plans. There’s a series of measures against which the regulator will hold that construction process to account and that’s going to be a huge change at that stage of the work. Then we’ve got the certification and registration for occupation. Again, [these are] hard stop gateways with quite long time limits, and you’re not allowed to occupy until you’ve got through the certification process.”
Q: New rules for HRBs apply from this month, making significant changes to how high-rise residential buildings will be operated and maintained. What will they involve?
HD: “[It means] the principal accountable person has now got to be able to demonstrate to the regulator that they are managing that HRB safely. All the existing HRBs have until 30 September to register with the regulator, and they’ve got to provide the key building information that’s outlined in the regulations. The key building information has been chosen by the regulator to enable them to prioritise the stock of existing higher risk buildings. We think there are 12,500 to 13,000 of them, and starting in April next year, the regulator will be calling in the safety case reports for every one of those buildings. If somebody is the principal accountable person, I believe they will have 28 days in which to respond once they get that call, so it’s probably not a good idea to wait until you get the call before putting your safety case together. I am not sure you’ll be able to do it and get the report to the regulator in a month, so people have got to start preparing those safety cases now. Once those safety case reports are called in, the regulator will be looking at them carefully.”
Q: Richard, you were involved in writing the BSI Flex 8670 Competence Frameworks. How do these and associated frameworks help to prove competence?
RH: “I think Flex 8070 has been helpful for the industry in setting some benchmarks for the different roles or disciplines to test themselves against in terms of meeting core building safety criteria. Competence and competence management are new areas for many people in the construction industry and that benchmarking framework gave something tangible to identify weaknesses and take action.”
Q: Following on from Flex 8070, what do changing expectations for competency mean to professionals working in our sector?
RH: “I think Flex 8070 introduces important concepts such as revalidation. We have an industry where people have qualified once and practiced for life without retesting, and that hasn’t been good for the industry. We’re playing catch up now, as this is a common requirement across so many other sectors. We do expect the industry to start to move towards reassessing people far more frequently to maintain quality.
“Engineers also need to be more familiar with where they interact with others and understand that they have a joint responsibility to manage those interfaces.”
Q: Do people need to think differently about how they approach compliance with the building regulations?
RH: “It is becoming very clear from the case law that’s emerging, primarily from contractual disputes relating to remediation, that the courts have given priority to compliance with the functional requirements of the regulation rather than accepting the minimum compliance level set out in statutory guidance. In real terms, it’s actually a rebalancing of the understanding of how the law has always been meant to work. The system has always been predicated on compliance with legal functional requirements and outcomes, but over many decades, compliance was understood to be taken from the statutory guidance that’s sat underneath. I say to engineers at events and webinars, ‘You’ve got to look at the good practice, the statutory guidance and at how all that can inform compliance with that functional requirement’. That probably leads towards additional levels of mitigation of safety. It leads towards application of [the] precautionary principle where you’ve got uncertainty as to how well you’re complying with those outcomes.”
Q: Do people really understand the differences between guidance and regulations?
HD: “One of the key reasons for systemic failure noted by Dame Judith [Hackitt] in the Independent Review of Building Regs and Fire Safety (www.is.gd/otuned) was ignorance about the difference between the regulations and guidance. Generally, if you follow the guidance in the approved documents, you will satisfy the functional requirements. For HRBs in particular, the regulator is going to expect people to have made the step ‘if I follow this guidance, can I be sure I am going to meet the functional requirements?’. There are likely to be multidisciplinary teams working for the building safety regulator, including a structural engineer, fire engineer and a building control specialist, and they will all be looking at it. ‘Does the design that’s being put forward for this building convince us that it meets the functional requirements?’ That’s the key test.”
Q: A new safety regulator has been created. What difference will it make to CIBSE and CABE members?
HD: “There are some firm statements in the Morrell report about the lack of enforcement of product safety and testing requirements. I don’t think Paul Morrell was able to uncover evidence of one successful prosecution for a product safety failing in the construction sector. I don’t think that either the building safety regulator or the new construction products regulator that is being set up within the office of product safety and standards will view that sort of track record as being acceptable even a year down the road.”
RH: “I look at this glass half full. In practice, we should see an industry that progressively gets more competent. That means that engineers should find their working life getting progressively easier over time [because] they will have fewer problems to deal with and there will be less collateral aggression and contractual dispute. The reason that will happen is because I believe the regulator is going to start taking the bad actors out of the industry.”
Q: The primary purpose of PEIs is to ensure competency and professional standards of engineers. What else should professional bodies collaborate on to further raise standards and professional accountability?
HD: “A number of professional bodies are already collaborating around the UK net zero carbon building standard. We have got 27 years to get 27 million homes and the best part of two million existing commercial buildings to be net zero. It’s not as simple as ‘oh well once we’ve got a decarbonised grid then there won’t be any emissions from the electricity’. There’s the whole issue of embodied carbon whenever buildings are refurbished or built. There’s quite a lot of work to do around net zero carbon and sustainability.
“We need to work quite hard at attracting younger people into the industry. Is it any surprise when people look at how the industry behaved pre-Grenfell that many young people say: ‘I don’t want to be involved in that.’”
BOX: LEGISLATION AND GUIDANCE UPDATE
The Department for Levelling Up, Housing and Communities (DLUHC) has published a suite of secondary legislation which applies to the new building control framework.
The following regulations come into force on 1 October:
The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (www.is.gd/gafaxo) The Building Regulations etc. (Amendment) (England) Regulations 2023 (www.is.gd/naticu) The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023 (www.is.gd/hebuzo)
To help navigate the legislation and support the new building control approval process for higher-risk buildings, DLUHC has published new guidance which can be found via www.is.gd/alagaf.