Simon Lewis describes what it means to be a ‘duty holder’.

On the night of 14 June 2017, a devastating fire broke out in the 24-storey Grenfell Tower block of flats in North Kensington, West London. Seventy-two people tragically lost their lives in the fire, more than 70 others were injured and 223 people escaped.

The Government took immediate action and on 15 June 2017 a public inquiry into the fire was announced. The Government also commissioned the Independent Review of Building Regulations and Fire Safety, led by Dame Judith Hackitt (the independent review) and its Final Report was presented to Parliament in May 2018. Building on the independent review, in June 2019 the Ministry of Housing, Communities & Local Government (MHCLG) published its proposals for reform of the building safety regulatory system (the Consultation) including reforms that will “ensure nothing like Grenfell can ever happen again”.

In this article, we will focus on Chapter 3 of the consultation which proposes strict accountability on ‘duty holders’ with clear and defined responsibilities throughout an ‘in scope’ building’s design, construction and occupation.

Part A - Design and construction

The duties included at Part A ensure “building safety is priority” during the design and construction phase. During this phase, the consultation proposes the alignment of duty holder roles with those already identified under the Construction (Design and Management) Regulations 2015 (CDM). To support the development of safer buildings during design and construction, duty holders will acquire both general responsibilities and specific regulatory requirements and will be responsible for demonstrating compliance.

Three specific gateway points during the design and construction phases have been identified and the intention is that at each of these gateways the duty holder will be required to demonstrate that they are actively managing building safety risks appropriately before being permitted to continue to the next stage of development.

Part B - Duties in occupation

The duties included at Part B focus on continuous assessment of safety risks within buildings as they evolve, undergo refurbishment and naturally degrade. The proposals aim to remove the “overlapping regulatory frameworks” identified in the Independent Review and “facilitate a whole building approach in ensuring the safety of residential buildings and their occupants”.

A new safety case accountability regime has been proposed, which would create an evidence based approach to fire and structural risks not provided for under the current legislative framework. Under the proposals, an accountable person will be required to produce a safety case for approval by a regulator prior to a building safety certificate being issued demonstrating that hazards and risks involved in a building have been identified, how the risks are assessed and controlled and emergency procedures in the event of an incident.

The responsibilities on the accountable person under the safety case regime are continuous and the accountable person will have to evidence how fire and structural risks are being managed on an ongoing basis. During occupation, the safety case will need to be reviewed every five years.

The consultation acknowledges that the safety case requirements will differ between new buildings and existing (occupied) buildings. For new buildings, the information provided during the three gateways will begin to form the “golden thread of building information” intrinsic to the consultation’s proposals and will be built on during the safety case regime process. For existing buildings however, the golden thread will begin later during the building safety registration process and the Consultation acknowledges that information on the building itself and the safety systems may be limited, difficult to acquire or simply unavailable. In such cases, the accountable person will need to demonstrate the measures put in place to mitigate against the potentially unknown risks.

Part C - Duties that run throughout a building's life cycle

At the core of the consultation is the concept of a “golden thread of accurate and up-to-date information about the design, construction and ongoing maintenance” of relevant buildings. This, according to the Government, is key to preventing a disaster like Grenfell from occurring again.

The consultation requires the information and data forming the “golden thread” to be stored digitally using a common data environment allowing different parties to work collaboratively on developing and maintaining the information. The Government has also suggested that the information may need to comply with the Building Information Modelling (BIM) standards.

In addition to the “golden thread”, mandatory occurrence reporting is also to be introduced, with a legal obligation on the duty holder to establish both internal reporting and reporting of specific occurrences (set out in legislation) to the building safety regulator.

The key to the success of the consultations proposals is ensuring duty holders have the required skill set knowledge and experience to comply with the new regime. The proposals, if implemented, impose very heavy responsibilities on duty holders with criminal sanctions for those who fail to meet expectations. Whilst we cannot know for certain that all of the proposals within the consultation will be implemented, we can be sure that the new regime will be a massive shake-up to the industry as we know it.