We are moving rapidly into a new era in construction. With the Building Safety Act, and the package of regulations implementing it, now emerging, we are seeing the greatest shake-up in the built environment since the Blitz. This column has previously considered the impact for designers and contractors, but there are also serious implications for the construction products sector.
A key tenet of the new regime is the responsibility of dutyholders for the work they do, whatever building work they do. There will be a new set of dutyholder roles for clients, designers and contractors, and legally described duties, with significant scope for the new Building Safety Regulator (BSR) to hold them accountable for their actions, or lack of them.
The new roles address one of Dame Judith Hackitt’s findings in her 2018 report – a systemic lack of clarity on roles and responsibilities, and of accountability across the sector. So, clients will have to ‘take all reasonable steps to ensure that those they employ are competent’, as draft regulations issued in November 2021 put it. We expect the final version to be published very soon.
In turn, the principal designer and principal contractor will be responsible to the client, and accountable to the regulator, for the compliance of their design and construction activity with all relevant regulations. Communications from the BSR have been very clear: the onus is on dutyholders to provide evidence to support their own assessment that the building or buildings are fully compliant with the regulations. This will take the form of plans of the work and other relevant evidence that convinces the building control body that what has been designed, if built, will be compliant – and, once built, to demonstrate clearly that it really is compliant in its finished form.
Manufacturers might ask what this means for them. A great deal. Building Regulations set performance requirements to be satisfied and are supported by guidance indicating what a compliant solution could be. They often reference requirements to comply with product standard or meet a certain level of performance.
To evidence that a design is compliant, designers will need to set out the standards that apply to the products and systems in their design, and the performance levels to be achieved. To show that a building is compliant, the contractor will need to demonstrate, with hard evidence, that the products used achieve the performance required by the design. If, for example, a fan should meet certain noise requirements, the contractor will need evidence that the fans installed meet that requirement.
How will they do that? One option might be to tell the building control professional (who will be on a statutory register, working to a national standard) that the manufacturer’s literature says the product complies. I suspect they will want to see hard evidence that the product has been tested against the appropriate standard. That will mean verifiable test reports – in many cases from a third-party testing body – detailing what test was undertaken and on what product, and what the results were. These are all set out clearly in any formal product-testing standard. To claim that a product complies with a standard will require evidence that it has passed all the relevant tests.
Some manufacturers are said to be unhappy about disclosing test results, which they consider to be their intellectual property (IP). Given the revelations about some manufacturers’ behaviour at the Grenfell Tower Inquiry, nothing short of full evidence of satisfactory testing will be acceptable on any significant building under the new regime. Those who wish to protect their IP may do so, but may find themselves short of orders. Those who can evidence satisfactory testing will be at a clear advantage.
And it’s not just the regulator who will be interested. I know an insurance underwriter who carries a copy of the Morrell Day report into product testing and certification, and asks potential customers what their business knows about the report, and what it is doing in response to its findings. He sees the importance of knowing what is going into the risk he is being asked to insure, and is not going to be fobbed off by spurious appeals to IP protection when being asked to insure an expensive physical asset.