Grenfell Tower Inquiry Phase 2: further building safety legislation reform is on the horizon

Spencer Vella Sultana and Wilton Thomas examine the further changes to building safety legislation likely following the report published this month as part of the second phase of the Grenfell Tower Inquiry.

On 4 September 2024 the Grenfell Tower Inquiry released phase 2 of its report, a copy of which (including the 52-page executive summary report) can be found here.

The report sets out a review of multiple factors, including

• the safety of construction products in the industry
• the regulation and building control inspections involved in testing and certifying construction products
• the role of industry professionals such as approved inspectors and fire risk assessors
• existing building safety legislation
• emergency services and fire safety plans for existing buildings, to name but a few.

To quote from the executive summary of the report directly:

“Safety of people in the built environment depends principally on a combination of three primary elements, good design, the choice of suitable materials and sound methods of construction, each of which depends in turn in a large measure on a fourth, the skill, knowledge and experience of those engaged in the construction industry. Unfortunately, as our investigations have shown, at the time of the Grenfell Tower fire there were serious deficiencies in all four of those areas.”

Angela Rayner, Deputy Prime Minister and Secretary of State for Housing, Communities and Local Government, on 5 September 2024 made it clear that following the report remediation works to unsafe cladding on existing buildings is happening far too slowly and has announced plans for a ‘remediation acceleration plan’, the details of which will need to be seen.

In this insight we discuss some of the report’s recommendations, with a focus on further building safety legislation changes (further to the Building Safety Act 2022 and additional legislation already enacted by Parliament) which may now be on the horizon to further address the serious deficiencies identified by the report. 

New construction regulator, or expansion of the Building Safety Regulator’s oversight?

A key criticism of the previous (and to an extent, existing) legislative structure for building safety law is that regulation had “become too complex and fragmented”, with various government, local authority, and testing organisations being responsible for ensuring construction products such as cladding were up to scratch.

Even post-Building Safety Act 2022 (BSA 2022), the report highlights that a number of regulatory functions “remain dispersed”. The report therefore recommends that all of the following functions are concentrated into a single body:

1. the regulation of construction products
2. the development of suitable methods for testing the reaction to fire of materials and products intended for use in construction and the testing and certification of such products
3. the issue of certificates of compliance of construction products with the requirements of legislation, statutory guidance and industry standards
4. the regulation and oversight of building control
5. the licensing of contractors to work on higher-risk buildings
6. monitoring the operation of the Building Regulations and the statutory guidance and advising the Secretary of State on the need for change
7. carrying out research on matters affecting fire safety in the built environment
8. collecting information, both in this country and abroad, on matters affecting fire safety
9. exchanging information with the fire and rescue services on matters affecting fire safety
10. accrediting fire risk assessors
11. maintaining a publicly available library of test data and publications.

We can, therefore, expect to see further amendments to the BSA 2022, and indeed secondary legislation, being enacted. Whether parliament will decide to increase the existing Building Safety Regulator’s (BSR) powers and functions (creating a sole body for building safety regulation), or whether a separate body for ‘construction regulation’ will be set up instead, remains to be seen. Either way, it appears that the BSA 2022 may just be the start of overhauling the regulation of the construction industry.

A change to the definition of “higher-risk building”

The BSA 2022 brought in various new requirements for higher-risk buildings (HRBs), which included paving the way for the HRB Procedures Regulations 2023. The second Grenfell report brings into question the types of buildings these regulations/provisions should apply to.

The report highlights that defining a building as ‘high risk’ by reference only to its height is “arbitrary in nature”. Instead, it states that consideration to the nature of the building’s use, and the likely presence of vulnerable people (and ability to evacuate them) needs to be given.

What this means is that we can expect the government to review the BSA 2022’s current definition of ‘higher-risk building’. We may even see the definition being expanded, meaning a wave of new buildings being caught by the extended rules under the BSA 2022 and the HRB Procedures Regulations. This is a highly significant recommendation.

Reform of oversight at Government level

Similarly to the regulatory ‘fragmentation’ discussed above, the report recommends that the various government departments with responsibility for fire safety (being the MHCLG, Home Office, and Department for Business and Trade) are all brought into one department with a single responsible Secretary of State (SoS).

The report goes on to recommend that a Chief Construction Adviser should be appointed to advise on various government departmental matters on building safety, which will include monitoring the Building Regulations, advising the SoS, and being a conduit in terms of what is happening in the wider construction industry and how that links to existing regulations and guidance.

Clearer building control guidance

The Building Regulations 2010 contain a set of ‘approved documents’ which are submitted by the applicant as part of building control. One such document is ‘approved document B’ which concerns fire safety compliance.

The report highlights that the guidance on such documents is ‘unsatisfactory’ and sets out a damning statement of approved document B that it does not “provide[s] the information needed to design buildings that are safe in fire”.

The report also suggested a specific amendment to approved document B to ensure that the building control applicant sets out a calculation of likely fire spread time and evacuation time for those with physical/mental impairments. This could point towards potential reform to the definition of higher risk building as discussed above; perhaps with the calculation submitted by the applicant feeding through into whether the building is then subject to additional building safety rules.

Either way, we can expect the BSR and government to review building control guidance and Building Regulations guidance.

Tighter controls over construction product compliance

The report recommends that the ‘construction regulator’ takes control over construction product compliance; recommending that they specifically account for legislative requirements, statutory guidance and industry standards.

It makes reference to ‘certificates’ potentially being issued for products, which should include all test results to support the specific product’s specification and proposed new requirements to ensure product manufacturers co-operate transparently with the regulator.

Additional requirements for ‘Gateway 2’

The ‘gateways’ were introduced to higher-risk building construction as part of the BSA 2022’s reform. We recently published an insight explaining them here.

It’s clear from the report that more engagement and sign-off is needed from those heading up construction projects. The report recommends that a requirement is inserted to gateway 2 (building control approval from the BSR) to require the principal designer to confirm via a statement that they have taken all reasonable steps to ensure that on completion the building as designed will comply with the Building Regulations.

A criticism of the current regime is that contractors often shift responsibility and are unclear on who is in charge of ensuring fire safety on higher risk buildings. The report recommends a ‘licensing’ regime for contractors working on higher risk buildings for two reasons:

1. it would bring up the general competence of contractors working on these projects
2. it would allow the BSR to check that the principal contractor is accredited to competently work on a scheme by requiring evidence from them at gateway 2.

The report also recommends that a personal undertaking is provided by a director/senior manager at the principal contractor, to confirm that they have themselves taken all reasonable care to ensure that the building is safe and in accordance with building regulations.

These recommendations appear to be building on the ‘single point responsibility’ and ‘competency requirements’ brought in by the BSA 2022 and part 2A of the Building Regulations 2010.

Qualification & accreditation for Fire Risk Assessors and Fire Engineers

The report highlights that there is currently no formal requirement/specific qualification in place for Fire Engineers. It therefore recommends that legislation is brought in to define and protect the profession, and that an independent body be set up to regulate them.

Similarly, with Fire Risk Assessors, the report recommends that mandatory accreditation is set up by the government in order to assess and ensure adequate competence and standards of these professionals.

Spencer Vella Sultana is a Partner and Wilton Thomas is a Senior Associate at Capsticks.