(1369) COMM - Article - Building Regulations: In The Spotlight

Leading Title Insurance

BUILDING REGULATIONS: IN THE SPOTLIGHT Changes to the UK’s building regulations law are on the horizon. It has arguably taken the Grenfell Tower fire disaster to properly bring the issue to the attention of lawmakers and regulators (not to mention the public). And though progress is slow, the initial signs have been promising.

The Grenfell tragedy in June 2017 claimed 72 lives and led to early calls for fundamental changes to UK building regulations and fire safety. The first phase of the inquiry concluded, in October 2019, that insulation and cladding added to the exterior of the tower block during refurbishment made the building non-compliant with building regulations.

During the second phase, the inquiry chair Martin Moore-Bick will (among other issues) examine those regulations and whether they were and are adequate.

Old to new At the other end of the housing scale, new homes are already set to become the subject of tighter building control. A government consultation on its Future Homes Standard was launched in October 2019, looking at making building regulations for new homes more robust.

Property owners and occupiers, developers and builders and other professionals in the construction industry therefore need to be familiar with the issues and the proposals set out by government.

The consultation (the first stage of a two-part consultation on proposed changes to building regulations) sets out the government’s proposed options to increase the energy efficiency requirements for new homes in 2020.

Under the so-called ‘green’ standard, to be introduced by 2025, new build homes will be required to be ‘futureproofed’ with low carbon heating and world-leading levels of energy efficiency.

An impact assessment published at the same time as the consultation showed that the new standard could cost developers up to £10bn over a 70-year period. Is that a price worth paying? According to the impact

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assessment, the benefits could be worth even more than that price tag in reduced heating bills, as well as carbon savings and air quality savings – at an estimated £11bn.

The economic assessment confirmed that the initial capital costs will be borne by developers.

Specifically, the consultation (which runs to January 2020) considers the impact on airtightness and on Part F (Ventilation) of the Building Regulations. Notably, two option are set out to ‘uplift’ energy efficiency standards and requirements: • Option 1: 20 percent reduction in carbon emissions compared to the current standard for an average home.

Government anticipates this could be delivered by “very high fabric standards (typically with triple glazing and minimal heat loss from walls, ceilings and roofs)”.

• Option 2 31 percent reduction in carbon emissions compared to the current standard. Government anticipates this could be delivered “based on the installation of carbon-saving technology such as photovoltaic (solar) panels and better fabric standards, though not as high as in option 1 (typically double not triple glazing)”.

The government also says if builders start work later on some homes in a development, they will need to build to the latest standard rather than continuing to build to the older standard over a long period. Small and medium sized building companies could therefore be affected sooner by any changes.

However, it has acknowledged that both these uplift options increase the costs for home builders so government is proposing removing the ability of local planning authorities to set higher energy efficiency standards than those in the building regulations.

Government is also being pressed from other quarters to readdress further building regulation issues. A new coalition, for instance, has just been set up to tackle the lack of suitable housing. The Housing Made for Everyone (HoME) coalition (formed by Disability Rights UK along with nine other organisations) has called for changes to building regulations for new homes to make the M4 (Category 2) standard mandatory (requiring new homes to include basic accessibility features).

Meanwhile, the Local Government Association (LGA) has called for local councils to have greater control over housing planning and to be able to hold developers to account.

“The LGA has called for developers to be held to account.’’

Breaches Developers, builders and others in the property and construction industry must be alert to any rule changes to ensure they are compliant with new rules and regulations, otherwise they could face enforcement action. A building regulation breach could lead to a section 36 notice under the Building Act 1984, requiring either the removal of the building breaching the regulations; or remedial work necessary to comply with building regulations. Both will lead to significant financial costs for the company or individual in breach, not to mention the reputational damage.

However, there are time limits in which a local authority can take enforcement action. Where 12 months have passed, it cannot serve a section 36 notice. Theoretically, it can ask the court for an injunction to prevent the offending property being used, though this procedure has never yet been relied on.

Alternatively – and more practically – the developer or builder can apply for retrospective building regulations approval (i.e. a regularisation certificate). However, there may be the risk it will not be issued. The local authority would then be on notice that there is a non-compliant building – and a section 36 notice could follow (if no more than a year has passed since it was erected).

If you carried out the work, note that you could be prosecuted in the magistrates’ court (up to two years after the completion of the offending work), where an unlimited fine could be imposed on conviction.

Insure the risk Building regulations indemnity insurance is increasingly the most practical option where there could be a risk of enforcement action. This covers the buyer and any lender against financial losses if an enforcement notice is served on the insured. To obtain cover, usually the works must have been completed at least 12 months before the date of the policy and the intended insured must not have made an application for approval, or otherwise have put the local authority on notice of the works.

First Title, for example, dealt with an insured’s claim under its building regulations indemnity policy when the insured was threatened with enforcement action.

The offending structure was an unsupported chimney breast, which breached building regulations. First Title paid the full costs of the necessary remedial work and the insured was issued with a compliance certificate from the local authority.

The fact that the building regulations regime is under the spotlight should be welcomed, though it is early days yet. Pending any overhaul, businesses must exercise caution when dealing with a potential breach of the regulations or risk of enforcement action – preferably with the benefit of specialist legal advice.

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