Clause 109 establishes the procedural steps that the Building Safety Regulator must take if it wishes to vary a special measures order that is in force on a building. The clause should be read in conjunction with clause 110, which provides more detail on variation or discharge of a special measures order.
The Building Safety Regulator must notify persons of its intention to apply to the first-tier tribunal for the variation of a special measures order. Clause 109 details the persons who should be notified and sets out the information that needs to be provided, which must include the rationale for the proposed variation to the special measures order. The Building Safety Regulator must make it clear how a person can make comments and observations about the variation. This ensures that those who may be affected by the changes to the management arrangements are consulted and can make representations.
The Building Safety Regulator must comply with the procedural requirements of clause 109 before making an application for a variation to a special measures order under clause 110. Once the decision is made to make an application to the tribunal for the variation of the order, a final notice needs to be given to those persons consulted, detailing the rationale for the decision. The proposed terms of the revised special measures order must be included in the final notification by the Building Safety Regulator if it decides to apply for the variation. Finally, clause 109 enables the Secretary of State to make regulations about the form of notices and the way in which these need to be given.
Clause 110 gives the first-tier tribunal the necessary powers to vary a special measures order. While the building is in special measures, circumstances may change and it may become necessary to change the functions of the special measures manager. Those who are responsible for the building should be able to vary the special measures order to ensure that it remains fit for purpose. The clause enables that and gives the first-tier tribunal the necessary remit to do so. Furthermore, the special measures manager may have fulfilled the functions that it has been appointed to carry out, and the building needs to be handed back to the accountable person. In this case, it would be necessary to discharge the special measures order, and clause 110 gives the tribunal the necessary powers to do so.
On application by the accountable person, special measures manager or Building Safety Regulator for a variation or discharge of the special measures order, the tribunal will normally be required to consider whether, in so doing, there is a likelihood of recurrence of the circumstances that led to the special measures order in the first place, and whether it is just and convenient in the circumstances.
The clause limits how a variation to the identity of the special measures manager can be effected. Only the Building Safety Regulator can do that, unless there is an agreement between the Building Safety Regulator, the accountable persons and the special measures manager.
Clause 110 gives a power to the first-tier tribunal to give directions to any person in respect of any matter relating to the variation or discharge of the order and any incidental or ancillary matter, which is necessary to ensure that the fire and structural safety management operates effectively on the ground following any changes made.
Clause 111 supplements both clauses 103 and 110, in that it provides that the Building Safety Regulator must notify persons about special measures orders. It ensures that those who have an interest in the fire and structural safety management of a building are informed of the making of a special measures order or any variation or discharge of an order. That ensures they are aware of the actions being taken by the Building Safety Regulator and the first-tier tribunal’s consequent decision.
Residents would want to know if an order is made by the tribunal to appoint a special measures manager—for example, if the Building Safety Regulator deems that a building should be placed in special measures and successfully applies to the first-tier tribunal for a special measures order appointing a special measures manager, the regulator must notify each accountable person in the building. As set out in subsection (3), it must also notify the building safety manager and a number of other people, including all tenants of the building aged 16 or over. The contents of such a notification would likely be a straightforward notice detailing that the court has made, varied or discharged a special measures order.
Moreover, clause 111(5) gives a power to the Secretary of State to amend by way of regulation the list of notifiable persons, which will mean that the right persons are notifiable in the future if changes are made to the new building safety regime. The clause is a key aspect of making the fire and safety management of a building more transparent and accessible.
Speaking to what my hon. Friend has said, I appreciate that we are dealing with a very technical clause, but it is important that we have the opportunity to be as flexible as we need to be and enable variations to take place, because quite often in these circumstances orders can need to be varied. Although this is a very technical clause, it allows us to have the flexibility and fluidity we need in the special measures procedure. The one thing right hon. and hon. Members would not want to do with these technical provisions is to pin ourselves into any sort of corner, so we need the tribunal to have the ability to vary orders.
We also need to ensure that there is still an engagement piece as part of that variation, which is equally important. As we found earlier in our deliberations, it is a technical process and can seem quite disconnected, so it is important that there is a flow of information to key and vital stakeholders.
I welcome the provisions. It is absolutely important that we enable that fluidity, combined with communication, to complement the regulatory framework that the legislation will build.
My hon. Friend has got to the heart of the technicality of the clauses, given that they need to be able to apply in multiple circumstances. If we were too prescriptive and there was no opportunity for flex in the system, it would be difficult for the clauses to apply to all the circumstances for which they may be necessary. On his second point about the flow of communication, it is of course expected that if a special measures order has been made on a building, a resident should be notified and made aware of the circumstances surrounding it. He is absolutely right on both points.