Kathryn Gilbertson

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Important questions arising from the Fire Safety Act 2021

Regulatory / 18 May 2021

The Fire Safety Act 2021 (the “2021 Act”) received Royal Assent on 29 April 2021 and will apply to certain buildings in England and Wales. The 2021 Act amends the Regulatory Reform (Fire Safety) Order 2005 (Fire Safety Order) which deals with fire safety in buildings. The 2021 Act has been designed to ensure people feel safe in their homes, and a tragedy like the Grenfell Tower fire never happens again. In this update, we consider some important questions arising from the 2021 Act useful to all involved with fire safety as well as real estate practitioners.

Who does the 2021 Act apply to and when is it in force?
Where a building contains two or more sets of domestic premises, the provisions of the existing Fire Safety Order will extend to include the structure and external walls of the building (e.g. cladding, balconies, front doors, and windows) and common parts of the building, as well as all doors between the premises.

It is estimated that the changes are likely to affect around 1.7 million residential properties in England and Wales. The date has not yet been set as to when the 2021 Act comes fully into force, however, building owners and RPs should act now to ensure they are ready for the changes.
Who is accountable?
The 2021 Act needs to be read in conjunction with the Building Safety Bill to clarify who is accountable for reducing the risk of fires and distinguishes between the “responsible person” (“RP”) and the “accountable person”. Do you know the difference and how it will affect your buildings?

What are the key duties and responsibilities of the RP?
There may be more than one RP assigned to a building.  All RPs:

—  must understand their duties and responsibilities including implementing measures to address any fire risk to protect the occupiers of the building.

—  should also ensure that appropriate due diligence checks are in place in case something goes wrong.

—  manage risk within a multi-occupied commercial or residential space by communicating with all RPs. You may need to take additional action because of the potential impact if one or more RPs have failed to comply with their duties.

How important are fire risk assessments?
Very – fire risk assessments for a building/premises must now also cover the above areas i.e. external walls, balconies, front doors etc. All existing fire risk assessments must therefore be revised and reviewed as soon as possible. If you sell a property with a fire risk assessment, then you should pass the information relating to fire safety to the incoming RP. Property buyers and real estate practitioners must therefore be aware of this.

Failure to comply with duties and responsibilities including fire risk assessments may result in enforcement by the Fire and Rescue Authorities.

Can you appoint an external fire risk assessor?
Yes – in addition to the RP fully understanding their duties and responsibilities, you may wish to appoint a “fire risk assessor”. Procuring the fire risk assessor and service requires a careful scoping of the work and verifying the competency of the assessor/company. Competence not price is key, and you should take advice about this.

Who is responsible for any potential remediation works?
The 2021 Act does not state who should bear the cost of potential remediation works to make them compliant with the new fire safety requirements. Leaseholders could therefore face footing the bill for expensive structural changes including the removal of unsafe cladding (although see our recent Property Focus update on how this may apply to Right To Buy leases).

The Government also published last week a consultation on the new “residential property developer tax” intended to help fund cladding remediation works, with plans to introduce a residential development tax by April 2022 to be levied against the largest property developers from profits made from UK residential development.

It is also hoped by many that the imminent Building Safety Act (see further below) will deal with the question about who bears the costs.

Comment
The changes will have a significant impact on the workload for RPs and fire risk assessors needing access to the building structure, balconies, doors etc. which could require invasive checks. They will also have consequences for property buyers and real estate practitioners.

The 2021 Act is not the end of it with other fire safety developments imminent, it will:

—  be supported by Statutory Guidance expected to be issued in the next 3 – 4 weeks.

—  also pave the way for subsequent secondary legislation that will not require a further Act of Parliament. This legislation will incorporate recommendations from the Grenfell Tower Inquiry and may include responsibility for lift inspections, the reviewing of evacuation plans and fire safety instructions to residents.

—  be complemented by the Building Safety Act and a requirement for buildings over six storeys to have an “accountable person” responsible for fire safety at that building. In the Queen’s Speech on 11 May 2021, the Queen confirmed that the Building Safety Bill will be brought forward in this term of Parliament.  The HSE appointed Peter Baker, in February, as a Chief Inspector of Buildings to establish and lead the new Building Safety Regulator (BSR).

Partner and Head of Regulatory, Kathryn Gilbertson, is recognised as a ‘leading light’ in the industry for her fire safety expertise. Please get in touch if you need help understanding your highly important duties and responsibilities.

 

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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoodsgrm.co.uk

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