‘This change is coming. It’s unstoppable,’ Judith Hackitt told the crowds gathered to hear her speak about the Building Safety Act (BSA), at an NBS Construction Leaders’ Summit in London in October.
The former chair of the Health and Safety Executive who led the government’s 2018 Independent Review of Building Regulations and Fire Safety has since been heading the industry’s safety steering group.
In a sobering address, she reminded industry leaders: ‘We are here because we all failed. We all allowed [the Grenfell] tragedy to happen.’
Ask almost any architect and they will agree that the staged introduction of the new safety legislation – formally introduced this year on 1 April – is vital. Moves to clarify lines of responsibility and duties, and to mitigate risk, aim to protect the public, improve the industry’s reputation, and, many believe, also improve the consistency and quality of architects’ design work.
But the question remains: what will be the true burden on architects? And could those required changes prove insurmountable for some practices?
The industry currently finds itself at a low point after grappling with an apparently unending chain of crises, from the uncertainty of Brexit and Covid-19, to the economic downturn, soaring inflation, material cost hikes and interest rate rises. All of these have taken their toll on the project pipeline, causing many projects to be stalled or scrapped and hitting the housing sector particularly hard.
As the BSA legislation gradually becomes law ahead of it taking ‘full effect in its entirety’ in April 2024, even Hackitt has to admit the situation ‘is starting to feel weird for everyone’.
According to Hackitt, the wider industry has been ‘exceedingly slow’ to react to an early requirement of the act introduced last April; to register all existing high-rise buildings by a deadline of October 1, 2023 (although ‘more than 14,000 buildings did, in fact, get registered by the deadline’).
The government has now pushed back the second staircase requirement for buildings above 18m until after the next election, with no date yet timetabled for publication of the relevant update to Approved Document B. Once it applies, there will be a 30-month grace period during which schemes without second staircases will still be allowed to start on site.
Before this, however, anticipation and a lack of clarity around the need for second stairs had already had an unprecedented knock-on effect on projects in the pipeline, with uncertainty hindering the progress of more than 20,000 homes in London alone by June.
‘Even now there’s still some uncertainty about, where are the parameters [of the act], what does it mean and what doesn’t it mean?’ says Nigel Bacon, project director at building safety expert Principle Properties Consulting.
The industry is struggling to come to a consensus on not merely the scope and requirements of the BSA, but also on its terminology – with architects variously interpreting the acronym HRBs as High Rise Buildings, High Residential Buildings, and Higher-Risk Buildings.
While the Health and Safety Executive’s guidance refers to ‘residential high-rise buildings’ as HRBs, the Department for Levelling Up, Housing and Communities refers to ‘higher risk buildings’ – which is also the definition favoured by the RIBA and the Royal Institution of Chartered Surveyors.
Maccreanor Lavington head of technical design Daniel Clift comments: ‘The title of one of the key pieces of secondary legislation is The Building (Higher-Risk Buildings Procedures) (England) Regulation 2023. The fact that so many different terms are being used interchangeably for this definition, by the various regulators, only creates confusion.’
Terminology aside, the act increases the difference in requirements for HRBs and non-HRBs, driving a growing perception among many architects of a new ‘two-tier system’.
But the idea that the act will not affect an architects’ work if they are not working on a higher-risk building has been put to bed by Hackitt, who told the AJ: ‘The principles [of the act] apply to buildings at all levels and all heights.’
However, she does admit HRBs will be subject to ‘a tougher and more formal regime’, in a ‘proportionate approach, depending on the level of risk’.
The duties laid out in the act have recently been a primary subject of debate for designers.
The BSA requires ‘accountable persons’ (APs), ie dutyholders, to ‘take all reasonable steps’ to prevent building safety failure – defined as ‘spread of fire and/or structural failure’ – and to reduce the seriousness of an incident if one does happen.
Under the act, APs are required to ensure their own design work, as well as any design work by employees under their supervision, is ‘planned, managed, and monitored’ so that the building design complies with all relevant requirements – provided building work is carried out in accordance with their design.
But the duties do not currently articulate how the role of a client, designer, or principal contractor can be delivered and evidenced.
As Clift points out, ‘while the principal competencies for the new roles have been defined in new standards, these do not give any guidance as to what day-to-day procedures somebody with those competencies could follow’.
Architecture practices face the question, if asked by clients or the regulator, can they demonstrate their BSA designer duties for a particular stage of work?
As a practice, ask yourself:
- Do we have a programme or plan of approach available for every project? Is it current, in use, saved correctly, and in a format I could share?
- Is the information we produce managed and checked by someone who can demonstrate experience in the subject area? Are all reviews and issues filed in a format that we can find if needed?
- Do we have up-to-date CVs for our team members, which evidence our capability, past project experience and recent CPD subjects?
- Can we list the regulations, requirements and guidance we are following, and evidence our design’s compliance with these?
- Are our management systems certified, or at least peer-reviewed?
And architects applying duties relevant to compliance now face two different processes for engaging with Building Control: one for any building not considered an HRB, and a second for all HRBs.
The first follows the current application process to building control (but with the attitude, culture and behavioural changes as set out in the duties), while the second approach covers all HRBs.
It involves gateway approvals (‘hold points’ at which the Health and Safety Executive will require assurance before building work can commence), including Gateway 2, which requires a single application evidencing a compliant scheme for the whole building, subject to the Building Regulations’ ‘must do to comply’ requirements.
The ‘necessity for all specialist design to be complete prior to Gateway 2’ is already proving a challenge for architects such as Maccreanor Lavington, says Clift.
The new process has some architects floundering. Previously, the approval process would often be based on a conversation between the design team and the building control officer to interpret in approved documents’ guidance. But now the Health and Safety Executive’s building safety regulator has indicated it will only offer pre-application dialogue at Gateway 1, not Gateway 2.
According to Clift, it is ‘likely’ that a Building Regulations consultant will soon become ‘a necessity’ on HRB projects for many practices, to ensure the planning, management and evidencing of their work complies with Gateway 2.
The increased uncertainty around compliance could be a worry for smaller practices with limited resources. It appears to be responsible for a trend of practices rebranding themselves as ‘design studios’, unwilling to be novated or to risk taking a design past RIBA stage 3.
Meanwhile, those practices continuing to see projects through to completion will need to develop a consistent approach to evidencing duties in line with the BSA, to offer clients and colleagues a comparative level of professionalism.
Bacon says all practices will soon need ‘a lot more structure to document retention and protocols around document management’ as a result of increased ‘rigidity to [fire risk] inspections’.
But he says a further challenge will be translating the increasingly rigorous design into practice. ‘How do we train people at site level to understand that [for example] if a mastic joint was going to be 10mm deep, then 9mm is [now] a fail?’ he asks.
And what will happen in terms of the ‘jump’ to remediation works if an inspection reveals a project isn’t 100 per cent in line with requirements?
Nevertheless, the AJ’s Geoff Wilkinson believes the BSA could represent a golden opportunity for architects to reclaim ground and ‘take back greater control’ of both the design process and the finished product.
The act, he explains, ‘should ensure a more even playing field, and [its] concepts – reducing risk to as low as reasonably possible – should already form part of the standard design process’.
Wilkinson says practices can take advantage of some ‘excellent’ design guides to help ‘identify the key safety risks and minimise them, and track the golden thread throughout’, including the RIBA’s Principal Designer’s Guide, as well as its free-to-download ‘A Guide to Managing Safety-Critical Elements in Building Construction’, developed in partnership with the Chartered Institute of Building.
He concludes: ‘There’s a natural resistance to change, and a temptation to catastrophise. But in truth, if architects are suitably qualified and experienced, and have robust systems in place, there should be no real issues.’
‘The Building Safety Act presents our profession with a choice’
Neal Morgan-Collins, director, Scott Brownrigg
Architects need a consistent approach in how we evidence our duties in order to ensure our clients and fellow industry colleagues see a comparative level of professionalism. For most, that should mean more project management and project support to the current team structure in return for greater level of service. The culture of low fees, reducing resource, deferring responsibility of compliance and leaving inexperienced architects to run projects needs to change.
The Building Safety Act presents our profession with a choice. We can either step forward to accept the challenge of regaining our position at the head of the construction industry, to provide strong design leadership that will ensure complex buildings are designed and constructed safely, and that the golden thread of information is maintained. Or we can retreat from this responsibility to focus on concept design where we will be scrapping with non-regulated designers and AI for lower and lower fees. The future is in our hands.
‘It will be interesting to see how the Gateway regime evolves…’
Daniel Clift, head of technical design, Maccreanor Lavington
The majority of our projects fall into the higher-risk buildings (HRB) category and so we’ve not really considered the new system as having a ‘two-tier’ approach – we are only considering the competencies and duties that apply to these projects.
The recent legislation and guidance around the Building Regulations principal designer (BRPD) duties and competencies has become a primary focus for us. The newly formed RIBA Principal Designer Register is a welcome structure as it will allow clients to satisfy themselves that we have the required competency.
While we understand that the BRPD role has been drafted with the intention that it can be undertaken by the lead designer, we are of the view, given our focus on HRB projects, that the support of a registered building control approver is likely to be necessary to support the BRPD’s to ‘appraise and challenge designers’ evidence of design work compliances’.
The other challenge we are contending with is the procurement and programme implications presented by the new Gateway regime, particularly the necessity for all specialist design to be complete prior to Gateway 2. It will be interesting to see how this process evolves in practice, and how BSR approval for any minor design changes that occur following Gateway 2 is managed.