Industry Insight: A Think Piece by Floyd Slaski Architects Managing Director, Hal Jones

Clients are pulling their hair out; suffering huge costs & delays due to the BSA Gateway 2 backlog. How did we get here?

EXPLAINER: THE CONFLICT BETWEEN REGULATION AND GUIDANCE  

The Building Act 1984 and approved guidance is a regulatory fudge, and all subsequent regulation including the new BSA only builds on that fudge.

UK Building Regulation functional requirements are performance based, requiring competence to interpret and this allows project specific tailored solutions and innovation. For example, Fire Safety Regulation is captured in less than 500 words, using the adjectives appropriate, adequate, reasonable and suitable no less than 13 times.

But that seems so wide open to interpretation, so it is surely sensible to have the approved guidance, right? Well, that’s difficult too…

Guidance that’s not comprehensive, and limited such that “in ordinary circumstances, may be accepted as one way to comply...[and] does not guarantee that building work complies with the requirements of the regulations – the approved documents cannot cover all circumstances.”?

WHAT IS THE PURPOSE OF THE GUIDANCE?

Is it intended that the guidance is to help the less competent to be able to comply with regulation? Is the guidance intended for building regulators of mixed competency to be able to have some benchmarks to be able assess compliance?

The regulation encourages us towards bespoke solutions, whilst the guidance pulls us back to ‘one size fits all’ design (but then caveats that we can’t assume the guidance is relevant).

So, we can’t hide from the reality that experts are needed to design and to be able to assess against compliance. There is no reliable or comprehensive building code.

Under the BSA, the requirement for compliance evidencing has accelerated the move away from innovation, driving designs to align with existing guidance.

There is a risk that professionals, perhaps lacking in experience or expertise, under commercial pressure and with a brief to ‘achieve and demonstrate compliance’ as quickly as possible, will interpret the guidance and apply it at face value. Indeed, the Grenfell Phase 2 inquiry report titled ‘adequacy of the current testing regime’ notes that the system leads to “delivering simple, high-throughput, and cheap measures of compliance that require little to no interpretation. This promotes a culture of ignorance and deflection of responsibility...”

The fire engineer must write the fire strategy report for the project, but their expertise is not considered sufficient as evidence; they must explain how the strategy is justified by referring to general guidance and explaining why that guidance is relevant. This steers the engineer to write strategies to fit the guidance, rather than to generate a strategy based on 1st principle risk assessment to suit the specific needs of the project.

If you are a fire engineering expert and can understand and adequately interpret ADB, then you don't need ADB: you would be able to formulate a fire safety strategy from first principles and ensure the design conforms to the strategy. If you are not expert, it is potentially dangerous to try and follow the guidance. What, therefore, is the purpose of the guidance?

THE BUILDING SAFETY ACT

The government has doubled down, introducing the BSA and creating new duty holder roles and responsibilities:

• Competences must be checked

• Design compliance must be thoroughly evidenced

• Construction compliance must be evidenced

• Regulators are Gatekeepers and must be more thorough with their compliance checks

The result is an immense bureaucratic overhead, with the new body, the BSR, tasked with ensuring compliance, completely unprepared and overwhelmed. 1000s of pages of information being submitted even for small projects (that might be in a big, complicated building).

The Principal Designer must compile and submit fire test evidence of every product and every arrangement of products. Reports must be written, forensically describing the design against approved guidance and the supporting evidencing information.

RACE TO THE BOTTOM

The regulatory context, since building control was privatised in 1997, is that we’ve witnessed a race to the bottom where clients appoint the lowest cost service. It became common for Approved Inspectors to glance at the plans, ask about fire, structure, insulation, issue a list of approved document guidance that needs to be complied with, visit site a couple of times and finish with a statement confirming that it remains the designer’s responsibility to comply.

BUREAUCRATIC OVERHEAD

Industry response to this new bureaucratic overhead is to fight over the limited number of competent building control officers and fire engineers that are currently available. The demand has changed, and the supply can’t change quickly enough.

GOOD THINGS

There is a lot of good stuff in the new legislation: it is good to address the race to the bottom culture; to remind clients of their responsibilities to appoint competent consultants; to allow adequate time to design and construct projects; and to ensure there are no compliance or health and safety shortcuts.

It is good to have a Principal Designer, that has a legal duty to point out the need for additional expertise or time if required, who is empowered to express concerns about consultant performance, or about unclear DRMs, or about the adequacy of CDP subcontractor appointments. It is good that contractors need to spend more time documenting the build process. It is good that Clients understand the importance and need to get their building record information in order, and keep it up to date.

It is also good that industry is auditing the validity of its product certification, ensuring its marketing is not misleading, and investing in more testing, to enable their products to be sold and used in a greater variety of applications (we’d like to know when plywood as continuous pattress in a plasterboard MF wall will be tested!).

WHAT CAN WE EXPECT FROM THE REGULATOR?

Building control can’t function as a forensic QA department serving design teams.  We have a performance-based regulations system, yet there is no culture of the Regulator assessing designs based on first principles. Their lack of resource risks a blinkered tick box, ‘compare to guidance’ approach; an administrative exercise.

Competent building control officers must be encouraged to determine a proportionate level of assessment to suit the individual project. They should not feel at undue risk of ‘missing something’. It should not be their responsibility. They cannot realistically act as a team of experts that mirrors the project’s design team. For each project we need them to ask, “what are the big-ticket compliance issues?”. Maybe there are no major concerns, even with an HRB project, and that is fine.

SHIFT TOWARDS POST OCCUPANCY COMPLIANCE ASSESSMENTS 

Maybe post occupancy evaluation should become building control’s remit, covering energy efficiency, fire safety, accessibility, the golden thread documentation. For much of the regulation, it’s easier to assess against the functional requirements of the regulations once built and being used.

IMPROVING THE GUIDANCE

We’ve explained the uncomfortable relationship between Regulation, Guidance and Demonstrating compliance. In the real world we can’t anticipate that the Government will address this at a fundamental level. We must work with what we have. In that vein we are pleased to hear that the Ministry of Housing, Communities and Local Government is embarking on a review of the approved guidance and we at Floyd Slaski Architects will be keenly engaging in this process via the ATLG (Architectural Technical Leads Group).

LET DESIGNERS DESIGN, AND BE RESPONSIBLE

Despite the dangers and limitations of the Regulation and Approved Guidance, competent architects are happy to design and to embrace the Principal Designer role. Let us design, let us take responsibility. We’ll shout if additional specialists are needed, or if a consultant is not pulling their weight, or if a client’s record information is insufficient.

We don’t need a regulator feeling the need or burden to check everything.

The industry’s disastrous cladding risk blind spot has been highlighted. Many lessons have been learnt, many good things have been introduced in response. Let’s be diligent, let’s work on improving the guidance and in the meantime, let’s have proportionate regulatory oversight to enable us all to get on with building the healthcare facilities and homes that are so desperately needed.

Please get in touch with your thoughts. We are keen to hear about your experiences. fsa@floydslaski.co.uk