Hackitt Final Report blog series: Week 3 - The new regulatory framework

Dame Judith’s final report proposes that the new regulatory framework is underpinned by a number of key parameters and underlying principles:

Buildings within the scope of the new regulatory framework

The final report confirms that new and existing high risk residential properties that are ten storeys high or more that will be targeted by the new regulatory framework, including buildings that have a mixed-use. These are referred to as "high risk residential buildings" or "HRRBs" throughout the report.

Importantly, the final report states that the new framework may apply to a wider set of buildings “where it feels proportionate to do so”. The examples given are multi-occupancy residential buildings below ten storeys, and institutional residential buildings such as hospitals, care homes, Halls of Residence, prisons and boarding schools. With this in mind

Dame Judith acknowledges that the formal definition of a HRRB may widen in due course.

Regulatory oversight of HRRBs

This is the function that will be fulfilled by the JCA, comprising the Local Authority Building Standards, fire and rescue authorities, and the Health and Safety Executive, working together to maximise focus on building safety within HRRBs across their entire life cycle. Our Week 1 article "The creation of a new Joint Competent Authority " outlines the creation and key responsibilities of the JCA.

A systems approach to risk management

The final report provides that the new regulatory framework should treat HRRBs as a single entity (one system comprising of various inter-dependent components) throughout its life cycle. Dutyholders will be required to show the JCA that they understand:

• how building safety risks will be managed directly via passive and active fire prevention methods, and
• how these methods may be impacted by other building requirements. Dame Judith highlights the problem where changes are made to one aspect of a building pursuant to the Approved Documents, without sufficient consideration of the effect this will have on fire safety. The final report sets out that a systematic approach, considering preventative and mitigation measures as a whole, is critical in overcoming this.

The final report states that analysis of the HRRB as a single system should be evidence-based. Dame Judith repeats the recommendations discussed in respect of the new governance roles within Government (discussed in our Week 2 article "Governance roles in Government"); that the Government should set out a regulatory framework featuring clear outcomes, whilst allowing the construction industry the freedom to develop the detail that sits underneath.

It is proposed that a new over-arching Approved Document should be published describing the system, and the holistic analyses to be completed when undertaking building work.

An outcomes-based approach to building safety

Dame Judith confirms that the regulatory framework should remain outcomes-based. The report states that this is important to allow the system to be flexible, and to avoid over-reliance on a prescriptive system, which discourages genuine ownership and accountability.

Robust incident reporting, whistleblowing and use of data

The final report is critical of the fact that there is currently no coherent approach to reporting issues during the construction or occupation of buildings, and there is no specific protection given to anyone who wishes to raise a formal concern.

Dame Judith recommends that a system of mandatory occurrence reporting to the JCA, similar to that employed by the Civil Aviation Authority, should be employed in respect of HRRBs. For all other buildings, the current CROSS scheme (confidential reporting with no requirement to do so) should be extended and strengthened.

Reaction from the Industry

The reaction to Dame Judith’s proposals for the principles underpinning the new regulatory framework have been mixed.
The Institution of Civil Engineers (ICE) has welcomed and supported the recommendations for a clear risk ownership model. Director general Nick Baveystock says:

“The Hackitt Review’s recommendations in many respects align with those put forward by ICE in its interim In Plain Sight report, which focused on the safety of infrastructure assets. It is important the construction industry continues to strive to ensure the highest levels of competence, working coherently to improve the governance of the development, management and operation of assets.”

He said the ICE welcomed and supported recommendations of a clear model of risk ownership, the proposal for an overarching body to provide oversight of competence requirements and a new regulatory framework.

Similarly, BRE’s acting CEO Niall Trafford said;

"We endorse the urgent need to create a simpler and more effective mechanism for driving building safety... In particular, we are very supportive of a new regulatory framework focused, in the first instance, on higher risk residential buildings ten storeys or more in height and a new Joint Competent Authority (JCA) to oversee this. We welcome the call for a more streamlined, regulatory route to oversee building standards and more rigorous powers to enforce these”

However, RIBA President Ben Derbyshire responded to Dame Judith’s recommendations:

“This Review should have been a defining moment - a set of findings to bring real and meaningful change to the complexity and confusion surrounding core building regulations guidance. Whilst there are elements of Dame Judith Hackitt’s Review that we very much welcome, we are extremely concerned that it has failed to act on the urgent need to immediately protect life safety through a more detailed programme of simplified and improved regulations, standards and guidance. The Review recognises that the changes it recommends will require legislative change and take time to fully implement. In the meantime we are left with confusion and lack of clarity. We will be continuing to stress our detailed concerns to Government.”

Similarly, Navin Shah of the London Planning Committee said:

“It’s very disappointing that this review of building and fire regulations has not recommended sprinklers or other similar systems to be made mandatory in all buildings above 18 metres. The Fire Commissioner said introducing sprinklers in this way is a “no-brainer”, so it’s deeply concerning that the Government continues to overlook the seriousness of this issue.”

An update on the proposals for the new regulatory system is expected to be released by the Government prior to Summer Recess at the end of July. This will follow the Government’s initial consultation with the construction industry, and it will be interesting to see whether the concerns above are allayed following this. The final report clearly envisages that the new regulatory system will have a wide-reaching effect and will, in time, be applicable to all buildings with a residential element.