CONSTRUCTION AND THE REGULATORY FRAMEWORK Trevor Rogers
Trevor Rogers is Regulatory Specialist at Local Authority Building Control (LABC) – a member-led organisation that represents all local authority building control departments in England and Wales, and which promotes public sector building control, provides advice and support to members, and engages with the public.
His career in public service building control began in 1997 as an Assistant Building Control Surveyor at Manchester Council. Progressing to Building Control Surveyor, he worked in the city centre team for 23 years. He has 35 years’ experience in the construction industry, including 27 in the building control profession. He joined LABC in 2021 as a Regulatory Specialist to develop and deliver the content for the Fire Safety in Complex Buildings qualification. He also supports members with technical and legislative interpretation of documentation associated with building control.
of the estate. Both are mandatory annual reporting systems, but where might they go in future in terms of helping the evidence capture?” Continuing to set the discussions in
context, Steve Batson noted that while there had been ‘a big push on investment into new build hospitals’, “if we tried to build our way out of the problem via new build it would take 300 years, because it’s just the tip of the iceberg. The existing estate is thus the lion’s share of what we’ve got,” he added, “and it’s about how we manage it over time and deliver healthcare efficiently.” He continued: “How we fund our healthcare has also changed; the money now goes through to local area health economies – via Integrated Care Boards. The way we manage our estate legally, fund our healthcare, but ultimately the affordability of our healthcare delivery over a period of time, are all becoming more challenging. Equally, how we manage our estate from a health and safety, legal, longevity, and sustainability standpoint, are all part of the equation.”
A solicitor’s view Having set the context, Steve Batson asked Phil Morrison to précis ‘what the Building Safety Act is from a solicitor’s standpoint’. The latter said: “Well, I’ve been living this for five years, and I think there is considerable ignorance in the industry, although perhaps that’s not reflected in the room. Part of the reason people attend roundtables is because they are interested in important topics like this, and although they have some knowledge, they are keen to expand it – so that’s always a good starting point. However, if we are talking about the industry, and especially clients, the ignorance is massive, and I mean that across the board – in terms both of developers, and clients in the public sector and NHS Trusts. It’s certainly been reflected in the questions we have been receiving from our clients.” Phil Morrison continued: “We can trace the DNA of the Act back to the Grenfell
26 Health Estate Journal September 2024
Tower fire, Dame Hackitt’s enquiry, and her subsequent report. It’s quite revolutionary, because for many years the construction industry has essentially marked its own homework. Clearly construction companies and healthcare organisations must comply with the Building Regulations and Building Control, but much of this has been done with the assurance of the parties in saying, ‘Yes, we have done it.’ As the Hackitt Inquiry showed, however, all the way down to fire test certificates, that’s not the most trustworthy approach. There’s a lot of temptation to bend, if not ignore, the rules. We are now seeing a major change.” Phil Morrison explained that the Building
Safety Act is aimed principally at high-rise, high-risk residential buildings, at least 18 metres high and of seven storeys or more, while it has also created a new Building Safety Regulator, part of the Health and Safety Executive – demonstrating just how important the role is. Phil Morrison added: “There are also quite serious sanctions for non-compliance – right up to imprisonment and unlimited fines. The Building Safety Regulator has been installed to oversee a change in the industry’s regulation – primarily around high-rise buildings, or ‘HRBs’, but also the Building Regulations, and construction and
Phil Morrison
Phil Morrison, Head of Clarion Solicitors’ construction offering, is dual-qualified in English and Scottish law, and has over 25 years’ experience in both contentious and non-contentious matters, advising large private and public sector bodies and parties involved in the construction industry. Accredited as a Specialist in Construction by the Scottish Law Society, he is also regarded as an expert in the fire regulatory regime. He provides commercial advice on procurement, development agreements, building contracts, including JCT, FIDIC, and PFI contracts, sub-contracts, professional team appointments, and collateral warranties. He works closely with his commercial property and banking colleagues, providing construction-related input into their transactions and documentation.
Phil’s contentious experience includes representing parties in mediation, adjudication, arbitration, and the Technology and Construction Courts.
cladding products – a real step-change. There have been massive changes to the Building Regulations, but also to other legislation, which have had a considerable impact. “For instance,” he continued: “the
Defective Premises Act, which applies to defectively designed dwellings, previously had a limitation period of six years. So, if a resident found a defect, they had six years to take the party to court. This has now been expanded to 15 years, and if you currently own a defective dwelling, you could, in fact, now go back 30. This has never applied retrospectively in the UK before, and the change has been made because of the cladding crisis.” Phil Morrison explained that the Defective Premises Act came into law in 1972, and ‘was always there, essentially as a fallback to sue for negligence in relation to defects’. He explained: “Another interesting change is remediation orders and building liability orders – new court powers created under the Building Safety Act to cater for leaseholders finding they would be charged to re-clad their multi-storey buildings, but without recourse to claim the cost back from anyone. Remediation orders and building liability orders were introduced as a redress for leaseholders wanting to sue the developer or landlord who had built the house, or the multi- storey building, who then came up against ‘£1 companies’ – special purpose vehicles, that either didn’t exist, or had been dissolved after the buildings’ completion.
Right of redress ensured “These new orders now allow individuals to ‘go behind’ those companies and sue the companies that own then. For instance, where there is a major housebuilder that has set up these individual SPVs – such as Housebuilder 1 Leeds, but which is owned by a massive housing company, the claimant could leapfrog the SPV and sue the other company. Such cases are now going through the courts, and succeeding – a massive change, because previously, via what is colloquially known
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