Building (Public Bodies and Higher-Risk Building Work) (England) Regulations 2023

Baroness Pinnock Excerpts

Tuesday 28th March 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, under the Building Safety Act 2022 and subsequent secondary legislation such as this, the Government are introducing a raft of measures to improve building safety. We are introducing the biggest reforms to the design and construction sectors in a generation, including the introduction of duty-holder and competence requirements for all building work. They also include introducing a more stringent regulatory regime during design and construction for higher-risk building work, to be overseen exclusively by the Building Safety Regulator.

The “higher-risk” definition during design and construction applies to work on buildings with at least two residential units, care homes and hospitals that meet the 18-metre or seven-storey height threshold. Under the current system, there is an exemption available to public bodies where they can obtain partial or full exemption from the building control procedural requirements if this is approved by government. These regulations will ensure that, in future, any exemption allowing public bodies to carry out building control on their own buildings will be limited to non-higher-risk building work only.

The exemption will not apply to higher-risk building work moving forward, as the Building Safety Regulator will be the sole building control authority for all higher-risk buildings, including those owned by public bodies. Although these regulations make only a small change, they are an important part of our ongoing reforms to ensure the safety and standards of all buildings and to ensure a consistent approach by the Building Safety Regulator to all higher-risk building work.

These regulations make three sets of changes. However, I will start by providing some context and background. After the tragedy of the Grenfell Tower fire in 2017 and the deaths of 72 people, the Government committed to fundamental reforms by implementing the recommendations of Dame Judith Hackitt’s independent review and introducing a new building safety regime. The review made significant recommendations, including the need to reform building control as the system which checks that building work complies with building regulation requirements such as fire safety.

Building control is carried out freely across the public and private sectors at present. Anyone commissioning building work, whatever its nature, can choose to use either the local authority—that is, the local council—in the public sector or a private sector approved inspector to carry out the building control. There is then a further option, open specifically to public sector bodies. If approved by Ministers, these bodies can obtain an exemption from some or all of the procedural requirements of building control and then carry out building control on their own buildings. This exemption has very rarely been used and almost all building control is carried out by either local authorities or approved inspectors, as opposed to public bodies self-regulating. In all cases, and irrespective of any exemption, the functional requirements of the building regulations, such as fire safety, continue to apply.

One of Dame Judith Hackitt’s main findings on building control was the lack of a level playing field between public and private sector building control. She recommended that the Building Safety Regulator should carry out building control for higher-risk building work and therefore end the choice of building control for these buildings. The Building Safety Act 2022 contained many reforms related to building control, including implementing a recommendation to end duty-holder choice of building control for higher-risk buildings, as well as strengthening the regulation of the building control profession.

These regulations are only a small part of our building control reforms, which themselves are only a part of wider building safety reforms. However, they are important. They contain measures that support the new system and its operation for higher-risk buildings, led by the Building Safety Regulator. The three sets of changes that these regulations make are as follows. First, the regulations end Ministers’ ability to grant building control procedural exemptions to public bodies for higher-risk building work. Building control on higher-risk buildings will in future be overseen exclusively by the Building Safety Regulator. However, the ministerial ability to grant exemptions for non-higher-risk building work is unaffected.

Secondly, the regulations require any public bodies with a partial exemption under Section 54 of the Building Act 1984 to cancel their public body notice with the local authority if the building work becomes higher-risk building work. Local authorities will also be required to cancel public body notices under the same circumstances. Currently, no public body has a partial exemption and therefore these measures are being introduced for future use as opposed to changing any existing arrangements. Only one public body, the Metropolitan Police, currently has any type of exemption, and separate regulations to be introduced later this year will change that exemption so that it applies to non-higher-risk building work only.

Thirdly, the regulations will allow the Building Safety Regulator to fine public bodies £7,500 if they have not cancelled their public body notice when building work becomes higher-risk building work. This will ensure an equal approach to approved inspectors, who will become registered building control approvers under the new system and who will be liable for sanctions if they fail to cancel an initial notice, which is their equivalent of a public body notice, under the same circumstances. Public bodies will be allowed to contest any fines, first through the Building Safety Regulator and ultimately in the courts.

These regulations support the aim of increased building safety, in particular for higher-risk buildings, by ensuring that the Building Safety Regulator is the sole body carrying out building control on such buildings. It also removes any possibility of this approach being undermined in future by public bodies being given exemptions that circumvent the Building Safety Regulator and the higher-risk building control regime. I hope noble Lords will join me in supporting the draft regulations. I commend them to the Committee, and I beg to move.

[Baroness Pinnock (LD)]

My Lords, I support the regulations that the Minister has detailed. They are entirely appropriate and another step in the right direction to overhaul and thoroughly improve building safety, particularly as in this case they apply to higher-risk buildings. I have a couple of questions for the Minister which I hope she will be able to answer.

My first question struck me when I was reading the details in the statutory instrument. Why on earth should any public body be exempt from basic building safety? Why is there an exemption? We would not be having this debate if there was no exemption. I did not quite hear what the Minister said, but it is my understanding that, of the higher-risk buildings that are in occupation, care homes, hospitals, secure residential institutions, I think, and military barracks are excluded from the definition of higher-risk buildings—if my memory of when we went through the Bill serves me right—and I have never understood why that should be the case. I would think that many hospitals would fall under this, as they are high enough to comply with the definition of a higher-risk building. I wonder why they are exempt, if I heard correctly and have read the Explanatory Memorandum correctly. Do we know how many public bodies will now be drawn into this? There are not that many that are very high-rise. It would be interesting to know.

I think the reason that care homes and hospitals were excluded from this is that they are already covered by fire safety regulations and legislation, but I am quite in favour of belt and braces. If there are fire safety regulations that control that, let us add to them regulations such as these because the two could work in harmony to ensure that, in this case, quite vulnerable people would have double the protection that we would want to make sure they had. That is another little query in this case.

My next point is about the Met Police. How on earth does it get an exemption? Where did that appear from? Somebody ought to say, “This will not do. You’ve got to be included in this because, as a Government, we are determined to ensure that any higher-risk buildings are totally safeguarded against the risks that were identified by”—as the Minister reminded us—“the Grenfell Tower tragedy nearly six years ago, which was just awful”. Let us get this right. If it means more regulation and better safety for more people, it gets a big tick from me.