Building Regulations and Resident Empowerment

The latest proposals on building safety from government are contained in a consultation, Building a Safer Future, which includes discussion of new routes of redress and complaint. The consultation closed on 31 July. Housing academic Stu Hodgkinson and fire safety expert Phil Murphy developed a very useful outline response for residents to draw on in preparing responses, available here, which we hope has enabled residents to more fully participate in the process.

The consultation sets out plans to implement many of the recommendations of the Hackitt Report, including in relation to resident responsibility, while significantly amending some aspects, including the height of the buildings regulated and the organisation of the regulators. This blog discusses these aspects of the proposals, drawing in part on discussions at a Ministry for Housing, Communities and Local Government (MHCLG) conference on 18 July at Church House in Westminster.

Height and the market in building control

The consultation proposes to bring buildings over 18 metres into scope (down from the 30 metres proposed by Hackitt), and also suggests that in such cases, it will no longer be possible for developers to choose which inspection regime to select. The law currently enables a builder to choose whether to be supervised by the local authority or by an ‘approved inspector’ under Pt II of the Building Act 1984.

Hackitt had identified the risk that the current market approach to building control did not work in high-rise residential buildings because of the (as she argued) increased risk of such properties. Her concern was that choice in such cases meant that quality of work could be based on lowest price and least intervention, and that there was a disincentive for building control bodies to use sanctions and enforcement because this might mean losing out on long-term business. She accepted that where local authorities are competing against private approved inspectors for the right to sign off a building as safe, there are clear incentives to sign off lower quality work. The industry (unsurprisingly) rejected this claim, arguing there was insufficient evidence to substantiate it. Nonetheless, Hackitt proposed that choice of regulator should be removed in such cases, and that all buildings over 30 metres should be regulated by local authority building control.

Although the same incentives must also apply in the context of lower-rise buildings, Hackitt did not propose removing market choice in such cases. Instead, she concluded that the building control system generally should continue to ‘utilise the very valuable contributions made by Approved Inspectors’, ensuring a continued role for private sector in low-rise building control. The MHCLG has adopted this approach, but has lowered the threshold so that where buildings are above 18 metres, the consultation provides that the builder should not be able to choose who should regulate them, but otherwise – for lower-rise properties – the market will operate unchanged.

However, it is not clear how developments with mixed height buildings fit into this approach, where some are above and some below the height limit. At Church House, one audience member expressed a concern that the continued role for the market in mixed height developments meant that ‘the system will still mean building safety is sold to the lowest bidder.’ It was disappointing that the response from the MHCLG representative did not clearly explain how such developments would be regulated, or indicate a willingness on the part of Government to reflect on the potentially problematic implications of a market in building control.

The regulatory system

In relation to the regulatory system, the MHCLG plan to significantly alter the plans set out in the Hackitt report. Hackitt had proposed splitting key regulatory functions over 4 regulators, and, in particular, creating a new Joint Competent Authority (JCA), made up of Local Authority Building Standards, fire and rescue authorities and the Health and Safety Executive. In what the MHCLG described at Church House as a ‘refinement’ of the JCA plans (and what a member of the audience described as ‘abolition’ of the JCA), the consultation proposes to create a single building safety regulator:

The formation of a single body in an already complex landscape of national and local regulators will avoid the introduction of further complexity in to the system, yet will allow it to set an enabling framework within which to work with existing regulators on the ground to ensure that they are improving safety and performance of all buildings and driving up continuous improvement and culture change beyond a small sub-set of higher risk buildings. (para 309)

This proposed regulator is strongly supported by tenant campaigners, and – critically – if properly funded, supported and organised, it is to be welcomed. Unfortunately, despite the length of the consultation, there is little detail on how the regulator will work with the organisations who were part of the JCA plans and how they will link together, running the risk that it will produce more, rather than less, complexity into the system.

Resident voice and resident responsibility

A central feature of the proposals is the claim that they will put the resident voice at the centre of proposals, and where residents have concerns, the consultation does provide more detail on how escalation of concerns to the new regulator might work. It includes the positive proposal that, in relation to the new regulator there should be a ‘no wrong door’ policy, in which all those in the system would be required to actively refer complainants. The principle is to be welcomed, but it will be the practical application of this which will be critical if the system is to operate properly. The consultation also proposes more detail on the provision of information to residents, much of which is to be welcomed (although more detail is still needed on how it will work in practice – does the accountable person have to know who is in residence, and if so, how will this work?).

However, more worryingly, and as previously critiqued by Carr in a reflective note on the Hackitt report, the proposals continue to emphasise the responsibility of residents to keep the building safe, with no details about how these responsibilities would be imposed.

In particular, at para 175, the consultation notes that

Dame Judith recommended that residents should have clear obligations in relation to maintaining the safety of flats and should co-operate with the dutyholder to the extent necessary to enable them to fulfil their duty to keep the building safe. We agree and propose to create a new requirement on residents of buildings in scope to co-operate with the accountable person in discharging their duty to keep the building safe.

Paragraphs 272-278 at pages 85 and 86 of the report set out a (little) bit more detail about how this might work, but contain nothing about the vital question of what a refusal to comply might entail.  

Crucial details, such as, for example, the question of how responsibilities would be enforced if there was no contractual relationship between the person with the duty to keep the building safe and the resident (a private tenant of a leaseholder for example) are left undiscussed. The extent of the proposals are set out in two paragraphs, paras 277 and 278, which briefly suggest that there could be a duty to cooperate which could be similar to the requirement in some Houses in Multiple Occupation, and such a duty could include a requirement to provide information and access rights. Subsequent consultation questions ask consultees what specific requirements would be appropriate if such a duty was imposed, whether safeguards would be needed, and if so, what safeguards might include. When the first author of this blogpost asked about this at the Church House conference, the answer from the stage was that the consultation seeks suggestions on this.

With little in the way of proposals, no indication of what failure to cooperate might entail and so what ‘safeguards’ would be needed (astonishingly, a suggestion that safeguards would not automatically be included), and little detailed acknowledgement of the potential complexities, the consultation on this does not fill us with hope.

Asked at the Church House conference if a further consultation was likely, once the proposals had been further developed and some of these issues discussed above had been resolved, those in attendance from the MHCLG did not provide a clear response. We can only hope that the response to the consultation, expected sometime in the autumn, will provide greater clarity.

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How to cite this blog post (Harvard style) 

Kirton-Darling, E. & Carr, H. (2019). Building Regulations and Resident Empowerment Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/09/building-regulations-and-resident-empowerment (Accessed [date]).