Clause 32 - Building regulations

Building Safety Bill – in a Public Bill Committee at 2:15 pm on 21st September 2021.

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Question proposed, That the clause stand part of the Bill.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

Clause 32 provides the powers to set procedural requirements in building regulations, which, among other things, will include the procedures for a new building control route for the design, construction and refurbishment of higher-risk buildings, the mandatory occurrence reporting framework during the design and construction of those buildings, and the golden thread of information during design and construction. I will explain each of the paragraphs—there are quite a few of them—in turn.

Proposed new paragraphs 1A and 1B of the Building Safety Act 1984 provide for building regulations to set procedural requirements relating to work, particularly for applications for building control approval. They will provide the basis for the new gateway process for creating new higher-risk buildings, and for a new refurbishment process when carrying out certain building work on higher-risk buildings. We will also be able to put in place new procedures for building control applications to be made to local authorities. The powers provided under the paragraphs will enable building regulations to make provision about notices that must be given to building control authorities—for example, when work commences—the issue of certificates, and the effect of such certificates. These regulations will also make provision for consultation arrangements, such as when building control authorities need to consult fire and rescue authorities on fire safety measures relating to building work. They will also include timeframes for providing consultation responses. Regulations made under these powers can also set out the grounds for granting or refusing an application.

With regard to the gateways, these paragraphs will allow for building regulations to set out new prescribed documents that must be included in applications for building control approval alongside plans for higher-risk buildings. They will also allow building control authorities the ability to set requirements when granting applications for building control approval. For example, the powers taken in proposed new paragraph 1B of schedule 1 to the Building Act 1984 would allow for staged approval routes for higher-risk buildings to provide greater flexibility for more complex developments—as we know, there can be many varied and complex developments. Applicants will be able to submit their application in stages with permission from the regulator, and in those circumstances building control approval will be strictly limited to the approved stages of work. Applicants will then need to submit plans and documents for other stages of work for building control approval before work on those stages begins.

Photo of Brendan Clarke-Smith Brendan Clarke-Smith Conservative, Bassetlaw

It is very good to see you in the Chair this afternoon, Mr Efford. The Minister is discussing the powers that have been strengthened for both the regulator and local authorities—something I certainly welcome—and, following on from that, the ability to set requirements when granting applications for building control approval. Could the Minister talk a little more about these gateways and explain in further detail what happens in them, particularly gateways 2 and 3?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am obliged to my hon. Friend. The gateways are a crucial means of ensuring the quality and consistency of work, so that poor work or work that does not meet sufficient standards is spotted and stopped. Gateway 2 will be a hard stop that replaces the present building control deposit of plans stage: a gateway 2 application will be submitted to the Building Safety Regulator for approval. It has to demonstrate building regulations compliance, including that plans should be realistic for the building in use and will deliver a building that is safe to occupy. It will be an offence to start building work without Building Safety Regulator approval. We will say more about those gateways in secondary legislation.

Gateway 3 replaces the current completion and final certificate stage of building work—that is, when building work is complete. Again, it will be a hard stop, whereby an application must be submitted to the Building Safety Regulator with building plans and information about the building. The Building Safety Regulator can and will carry out inspections, and if it is satisfied—as far as it can determine—that the building complies with the building regulations requirements, it will issue a completion certificate. These are quite stringent processes that, as I trust my hon. Friend will recognise, are powerful tools. In circumstances where building control approval is strictly limited to the approved stages of work, applicants will then need to submit their plans and documents for other stages of work for building control approval before work on those building stages can begin.

The powers that we have taken in proposed new paragraph 1B will also allow applicants to submit applications for building control approval with plans and any relevant prescribed documents they consider appropriate for refurbishment in higher-risk buildings. That will ensure that applicants are not subject to disproportionate requirements when proposing relatively minor refurbishments, which could be replacement windows or changes to the central heating or lighting system, for example. However, the regulator will be able to refuse the application if prescribed information is not provided on request. All these provisions together will strengthen the regulatory oversight of design and construction.

New paragraph 1C makes further provision on the issuing of certificates to building control authorities by members of approved schemes. The powers provided by the new paragraph will enable building regulations to set out how schemes may be approved, the time periods for approval, the suspension and withdrawal of approvals and requirements about insurance cover for work covered by certificates.

Currently, there are arrangements whereby those carrying out specified types of work can self-certify that the work is compliant with relevant building regulations requirements and notify the local authority accordingly under the competent person scheme arrangements. This provision recognises that there are a significant number of low-risk building jobs for which it would be disproportionate to require building control authorities to approve or inspect. The powers in new paragraph 1C will enable us to put in place a robust statutory framework for those competent person scheme arrangements.

New paragraph 1D creates a power to enable building regulations to make provision about the supply and retention of information. This power will be used to require a golden thread—we have heard that term before, Mr Efford, and we will hear it again—of information to be created and maintained through the design and construction of high-risk buildings.

Photo of Theo Clarke Theo Clarke Chair, International Development Sub-Committee on the Work of the Independent Commission for Aid Impact, Chair, International Development Sub-Committee on the Work of the Independent Commission for Aid Impact 2:30 pm, 21st September 2021

I welcome the Minister’s saying that there will be provisions to deliver the golden thread, which will be critical in helping to ensure that buildings are safe throughout their life, and I welcome the fact that new paragraphs 1C and 1D will contain requirements on the giving, obtaining and keeping of information and documents. Will this clause also ensure that developers will not be able to switch to cheaper and less safe materials during construction?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I think it will—in fact I am sure it will—because it will require that, in design, construction and refurbishment, information that is needed to demonstrate compliance with specific building regulations is available. It will also require that information garnered through mandatory occurrence reporting, which we discussed in Committee last week, will be available, and there will be a clear legal requirement on duty holders to hand over that information. The power will also be used to require certain information about safety occurrences to be provided to the regulator. I will discuss that a little more in a moment.

New paragraph 1D also creates the power to make regulations to set out the information and documents that must be stored in the golden thread, and to set out standards that the golden thread must be held to. We know there is currently a lack of information about higher-risk buildings, which makes it difficult to design, construct and refurbish them safely. We are also aware that where there is that information, it is often not kept up to date, not accurate or not accessible. We believe that having accurate, up-to-date information is critical to ensuring that buildings are managed safely, and this new paragraph will ensure that the information is recorded and that it is accurate, kept up to date and accessible to those who need it.

Dame Judith’s review recommended that a golden thread be put in place for higher-risk buildings. We agree, and the recommendation is being executed, recognising that it is critical to ensuring that buildings are safe.

New paragraph 1E enables the implementation of a key recommendation of Dame Judith’s independent review: mandatory occurrence reporting, which I mentioned a moment ago, for higher-risk buildings going through the design and construction phases. Mandatory occurrence reporting is intended to provide a route by which valuable building safety intelligence and trends will reach the Building Safety Regulator and be shared with industry.

The effect of that proposed new paragraph is to enable regulations to be drawn up that require duty holders in design and construction to establish a mandatory occurrence reporting framework to facilitate the reporting of occurrences on site so that the duty holders, who have an obligation to report them to the regulator, become aware of occurrences in good time. Mandatory occurrence reporting will aid in driving intelligence-led enforcement on the part of the Building Safety Regulator, promoting safety-conscious culture change and improving safety standards and best practice across the built environment.

Proposed new paragraph 1F enables building regulations to prescribe the form and content of documents or information that must be given as part of a building control application. Those documents will be a key part of the new building control routes for higher-risk buildings. Proposed documents include a design-and-build approach document, a fire-and-emergency file and a construction control plan. The documents must demonstrate compliance with building regulation requirements and be realistic for the building in use—I made that point to my hon. Friend the Member for Bassetlaw. That will ensure the consistency and quality of building control applications for higher-risk buildings.

The proposed new paragraph also allows for building regulations to set out how documents and information must be given. For example, it may be necessary to submit documents to the Building Safety Regulator via an online portal. It will also enable certain building applications to be refused if a document is not provided to the building control authority on request.

In order to check compliance, building control authorities must be able to inspect and test work, equipment, services and fittings, and to take samples. New paragraph 1G provides powers for building regulations to make provision for that. Building regulations will also be able to prohibit work from being covered for a period to allow the building control authority to inspect the work and to provide for the building control authority to cut into or lay open the work. Related amendments are also being made to section 33 of the Building Act to enable a building control authority to require a person carrying out the work to carry out tests of the work.

New paragraph 1A, which we discussed earlier, will allow building regulations to set prescribed timetables according to which building control authorities will need to determine applications—for example, gateway 2 applications, change control applications, and gateway 3 applications. That will help prevent unnecessary delays.

New paragraph 1H will allow building control authorities to extend that timetable where necessary, with agreement from the applicant—for example, if a development in hand is particularly complex. That will provide greater flexibility than under the current regime.

New paragraph 1I enables the drafting of regulations to allow persons affected by decisions made under the Building Act, or building regulations, to appeal against them. The Government supports the recommendation of Dame Judith’s independent review that the regulator must be “fair and transparent”. Where developers want to challenge a decision by a building control authority, it is right that they can do so. This clause makes provision to create routes of appeal to the regulator and the tribunal in England, and to Welsh Ministers or a magistrates court in Wales, whichever is appropriate. It also makes provision to set up procedural and administrative arrangements.

Photo of Brendan Clarke-Smith Brendan Clarke-Smith Conservative, Bassetlaw

We have discussed appeals. As part of the process, it is important that we have a robust and accessible appeals process, which is easy for people to undertake. Does the Minister share my opinion that these appeals need to be conducted in a reasonable amount of time? They have a habit of dragging on for long periods. With something as important as this, does he agree that people should have an assurance that when they make an appeal it is not just accessible but that they can expect an answer within a reasonable time period, to correct whatever problem has arisen?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am obliged to my hon. Friend for raising the issue of appeals. We have said in regulations that if the time limit is not met between the regulator and the applicant, and if an extension is not agreed, then the applicant can submit an application to the Secretary of State for a decision. That is a last resort. Through these provisions, we want to ensure that decisions can be made swiftly and efficaciously, so that challenges that may be brought to the Building Safety Regulator by a developer are dealt with rapidly, and a safe development can be advanced as quickly as possible. These include grounds for appeal, and the period during which an appeal can be lodged are also included in this clause.

There are a number of related consequential amendments in draft schedule 5. These include repeals of sections 16, 17 and 31 of the Building Act, which will become redundant with the introduction of new applications for building control approval under paragraphs 1A and 1B in clause 32.

That includes repeals of paragraphs 2 to 5 of schedule 1 to the Building Act, which are directly replaced by the new paragraphs 1A to 1I in clause 32, and amendments of existing references in the Building Act to, for example, the deposit of plans to the

“making of applications for building control approval”.

These new powers apply in Wales as in England, so the Welsh Government will be able to amend its building regulations as necessary. I appreciate that these are technical and rather dry paragraphs, but they are important to the success of the Building Safety Regulator, its powers and the appeals mechanism. Therefore, I commend clause 32 to the Committee.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government)

I thank the Minister for his thorough and detailed examination of the clause. The independent review made several recommendations for stringent new building control procedures to increase the regulatory oversight of design, construction and refurbishment—if we take our minds back to Grenfell, that was a refurbished building—of higher-risk buildings and of building work subsequently carried out. One concern, which was echoed by the Select Committee, is that a lot of detail is again left to secondary legislation, as the Minister referred to. To draw upon the golden thread, as a means to explain to Members not just in Committee but beyond, does the Minister have an example of the golden thread from beginning to end? Has he done some scenario planning of the application of the hard stop? How does the new regime capture permitted development? How does it capture those refurbishments and those conversions of offices into residential buildings?

Photo of Shaun Bailey Shaun Bailey Conservative, West Bromwich West 2:45 pm, 21st September 2021

I grateful for the opportunity to speak on clause 32 which although very technical, is none the less very important. I want to speak about mandatory occurrence reporting, because I think that is a key matter. In order to understand trends and where consistent issues are becoming a problem it is key that disasters such as Grenfell are not allowed to repeat. We need to spot problems early. That comes back to the broader point of collaboration and working together. This is a collaborative piece. To ensure that the legislation works for the future and that we have a market that truly works for everyone, we must ensure that information is shared. We must ensure that trends are spotted early. It is about treating the issue as a partnership between stakeholders. To have the BSR acting as the centre point and information gatherer will be key.

The clause needs to provide certainty, although we will need to see the secondary legislation that will derive from the Bill. We need to ensure that leaseholders and residents have certainty and that they know where they stand, but we have a market to meet, and we must build houses. We know that we have a housing shortage and that we need to construct more places for people to live. To do that, we must have a regime that works. We must know that, ultimately, those who use the regime and construct property understand the rules by which they play. Equally, the balance must be struck so that they cannot game the regime either. That is why there needs to clarity.

The hon. Member for Weaver Vale is right that we need to examine the detail in secondary legislation. We need to see what the structure of that will be. It is all well and good to say “we’ll prescribe this, and we’ll prescribe that” but we need to know what specific forms will look like, how people will fill them out, whether they will be usable in a commercial context or will that encourage an organisation, a builder, a company or whoever to circumvent the system, because they think, “Do you know what? It’s a little too complex for me to do, so let’s see how I can fiddle it around”? The wording of the clause goes some way to delivering this, but we need a system that says to builders and stakeholders, “Look, it is within your interests to play within the system and comply with the regulations, and to share the information as part of the mandatory occurrence reporting.”

We have spoken about the impact in Wales as well, and it is important that, ultimately, we have that consistency in England and Wales. The hon. Member for Weaver Vale will know that there is a lot of cross-border buying and selling, and we must ensure that there is consistency so that people know where they stand in terms of the regulations. I am sure that he has many building firms that will do work both in England and in Wales, so they will need that consistency to know exactly the rules within which they are playing. I hope that the Minister will be able to tell us about the conversations he has had with colleagues in Welsh Government to ensure that. That will be a real test of clause 32 and the subsequent secondary legislation, so that the marketplace that must fit within the regulatory framework knows where it stands. I come back to the point I made before, which is ultimately about ensuring that we can continue to have a market that builds houses, to address the situation that we have with local house building.

Photo of Ian Byrne Ian Byrne Labour, Liverpool, West Derby

I want to touch on a couple of things. Enforcement is key. We heard lots of evidence about the need for culture change. Enforcement gives us rules and regulations, which the sector needs, but we need to change the culture. Listening to the Minister’s response, I am at a loss to know where the enforcement will come from and how it will be funded. It would be good to get a real understanding of how this golden thread will be enforced. We listened to evidence from the Fire Brigades Union about how fire safety officers have been decimated. We know about local authority cuts. I would really like an understanding, on the record, of where the enforcement will be made and how it will be funded. We had rules, regulations and laws, but without enforcement we still had Grenfell. Hugely important moving forward is how the new set of regulations will be enforced to ensure that it is adhered to and we get the culture change that we desperately need.

Photo of Shaun Bailey Shaun Bailey Conservative, West Bromwich West

I thank the hon. Gentleman for his intervention; I am sure that there are some points that my right hon. Friend the Minister will pick up. I agree that enforcement is a really important part of this and has to be done properly. We discussed funding this morning. As my right hon. Friend indicated, there has been a funding uplift. As I said this morning, it will be on us to ensure that that works and is done in a proportionate way. I have no fear in saying that. It is our job to do that. Without being too repetitious, it is perhaps slightly frustrating, but the secondary legislation will be an important part of it, because that will show the meat of how the enforcement will operate.

It comes down to the operational delivery of all this. The clauses are very technical. They are there to lay the base framework. From my very limited time in this House, when we are passing legislation the big thing that we always have to think of is how it will work in practice. There are probably broader debates, particularly with clause 32, about what that will look like. The hon. Member for Liverpool, West Derby touched on cultural change. It is important that the clause acts as a catalyst for that. As I touched on, it is about ensuring that there is a framework by which construction firms and builders know to operate, that there is an ability to share that information, and that building regulations flow through to ensure that we know where we are and that a really stringent process is followed. We must also be able to see the information that is required—the safety reports and fire reports—to ensure that we have the golden thread and the pathway that we have discussed, to ensure that we have built a story of compliance and safety, and to ensure that if we have to review the pathway to the construction of a building we can see that it has followed the tests and that corners have not been cut.

Clause 32 provides that base framework, but I stress that the meat will come in secondary legislation. As always, my plea to the Minister is that we continue with the flexible approach that he has adopted so far in relation to this piece of legislation. It is about being adaptable. The clause gives us the framework, but we know that the market changes, pressures change and risks change. When we come to report on building regulations, we must ensure that, as we look at clause 32 in secondary legislation, it has the room for manoeuvre to react. If we have to ramp up the reporting mechanisms, we must be able to do so. Equally, they must be robust enough to manage that.

We must remember, and I know my right hon. Friend is completely aware of this, that it is the leaseholders and residents who are at the core of this. Clause 32 was described as dry and technical, but it is a linchpin clause because it sets the rules of the game, which will protect some of the most vulnerable residents and leaseholders—the people we have been sent here to stick up for. We will ensure they have that framework and that right of redress. It is an important clause and I support it. I am really interested to see the secondary legislation that follows and it has my full support.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am obliged to the Committee for considering the clause. I am grateful for the intervention by my hon. Friend the Member for West Bromwich West. He raised the question of cross-border co-operation between English authorities and the Welsh Government. I can assure him that my officials have been in close contact with the Welsh Government to ensure that provisions apply properly. Of course, because the devolutionary settlement came after the Building Act 1984, certain changes need to be made to the Act. There certainly has to be a recognition that the Building Safety Regulator does not apply in the same way in Wales as in England. The building control authority in Wales is the local authority—although a local authority can for the purposes of independence designate another local authority to act as the building control authority in a particular instance of a high-rise residential or in-scope building in their authority jurisdiction.

The hon. Member for Weaver Vale asked a number of questions about the golden thread. I agree that it is a hugely important element of the Bill and an important element to demonstrate trust and compliance to the regime. It is about giving information about a building that allows someone to understand the building. It also provides information to effectively manage the building. It needs to be created before building work starts and it must be kept updated throughout the design and construction process—for example where through the change control process, the plans for the building work are changed. That also needs to be captured in the golden thread.

When the building work is finally completed, the golden thread must be handed over to the person responsible for the occupied building, called the accountable person. The information required will have to demonstrate compliance with specified building regulations and information required through mandatory occurrence reporting. We will set out specific requirements for the golden thread in secondary legislation. The nature of the information and the documents that must be stored as part of the golden thread are potentially subject to change over time in accordance with technical developments in safety standards and safety practices. Some flexibility in the listed information and documents is required, and that is why we propose putting it into secondary legislation rather than putting it in the Bill.

I can give an assurance to the hon. Member for Liverpool, West Derby, who raised the issue of enforcement. We talked about that last week in Committee, and I pointed out the funding that has been made available to the Health and Safety Executive to help set up the shadow Building Safety Regulator. We have talked today about the fees and the charges that may be applied, as well as the spending review commitments we will make to the Building Safety Regulator.

I will give one example of enforcement. If mandatory accounts reporting data is not properly captured or provided as part of the golden thread, that is an offence that the Building Safety Regulator can pursue through means of prosecution of an appropriate designated party. We are giving the Building Safety Regulator, we believe, appropriate teeth to do its job.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I will give way briefly, but I am sure that the hon. Gentleman, like me, will want to get on.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government)

I asked the Minister about permitted development and how that will be captured by the golden thread. It will be detailed in secondary legislation, as is mirrored throughout the Bill. I understand some of the practicalities around that, but given that this is a central aspect of improving the building safety landscape, surely the detail should be in the Bill. Look at permitted development. Will there be refurbishments from office to residential? Grenfell was a refurbishment. I would welcome the Minister’s comments on that matter.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am happy to look at the matter for the hon. Gentleman and make sure that we properly cover all eventualities in secondary legislation. I point out that with respect to permitted development rights, it is unlikely—although I would not say impossible—that buildings that fall into the scope of the currently defined regime will be built using permitted development rights. I suggest to him that such a building would very likely require planning permission using the normal routes.

I am very happy to make sure that we cover off those sorts of considerations when we look at secondary legislation. We need to make sure that it is sufficiently flexible to take account of future safety arrangements, future technical designations and future planning rules, which, as the hon. Gentleman will know, we are considering very shortly. With that, I commend the clause to the Committee.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.