Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In my previous blog, I concluded my review of how the roles and responsibilities of the key CDM duty holders may be applied to Higher Risk Residential Buildings (“HRRBs”). In this blog, I will explore the Hackitt Report’s recommendation for the introduction of a ‘golden thread’ of quality building information and what that means for Principal Designers and Principal Contractors.
The Report’s recommendation is borne out of the CDM Regulations, namely the requirement for the Principal Contractor to maintain a Health and Safety File in respect of construction projects which involve multiple contractors. The Health and Safety File is a collective record of all of the health and safety information in connection with a construction project.
The main drive behind the ‘golden thread’ is to promote the retention of a clear, current and accessible record of information relevant to HRRBs, in order to quickly ascertain whether any changes have been made which may impact building safety between the time of the building’s initial conception and the completion of construction. It will also be of assistance when fire risk assessments are carried out, any time there is a change in building ownership or management, and when deciding whether to take any corrective action following a period of renovation or refurbishment.
The ‘golden thread’ consists of four key information products:
I have explained each component below:
The digital record will be a record of the building containing all of the information at the planning and construction stages, such as the materials used. It will be updated throughout each phase and its primary objective is to ensure accurate records are kept of the as-built building. The client will be responsible for preparing the initial digital record and then it will be the responsibility of the Principal Designer and Principal Contractor to update and complete the digital record.
To support the production of the digital record across the building’s life cycle, the Report recommends the use of Building Information Modelling (BIM) be extended for new build projects. BIM has been used in the Cross Rail project and for the development of Terminal 5 Heathrow and has been a requirement on all public procured projects since April 2016 but it is not widely used in private projects as was initially hoped.
In addition to BIM compliant plans, the Report provides an example list of the types of information which should be stored in the digital record to promote health and safety during design, construction and occupation. The Report suggests such information should include, but not be limited to:
It is foreseeable that much of this information will be duplicated in the existing Health and Safety File and the new Fire and Emergency File.
The Fire and Emergency File goes over and above the requirements of the Health and Safety File. As the name suggests, it will be a clear and comprehensive record of fire and emergency protocols which will be kept up to date by those involved with the design or construction aspects of a HRRB. As with the digital record, the Fire and Emergency File will be initiated by the client and will be updated and concluded by the Principal Designer and the Principal Contractor, before being handed over to the ultimate owner of the building. The record will assist the owner of the building to understand the reasoning behind the fire safety precautions that have been implemented and provide clear information when any refurbishment work is undertaken.
Full Plans will be detailed plans and specifications relating to fire and structural safety, along with the wider requirements as necessitated by Building Regulations, which are prepared by the Principal Designer and approved by the newly established Joint Competent Authority (JCA). Full Plans will provide a more thorough investigation of safety plans than those required under current Building Regulations. Through Full Plans, the Principal Designer will be required to satisfy the JCA that the key identified risks have been reduced as far as reasonably practicable. The JCA must consider and approve Full Plans prior to the commencement of construction works. Sanctions will be imposed on duty holders should construction work begin prior to receiving consent from the JCA.
The benefit of Full Plans, and in particular the requirement for these to be approved by the JCA prior to commencement of construction works, is that health and safety matters will be considered in detail at an early stage in the project. It is believed that this will lead to a reduction in changes being made during the construction phase. It will also be simpler for inspections to be carried out during the construction phase, as the JCA will have a detailed document to act as a benchmark.
The Report also proposes a new Construction Control Plan which will set out how Building Regulations and other building safety measures will be maintained and complied with throughout the construction phase of a project. This document will also specify how any changes to Full Plans will be recorded following their initial approval by the JCA.
The Principal Contractor will have primary responsibility for the Construction Control Plan but its main purpose is to ensure that all parties involved with the construction phase are mindful of remaining compliant throughout the lifetime of the project.
It is proposed that the digital record and the Fire and Emergency File, along with any fire safety inspections, fire risk assessments, fire and structural safety records and a resident engagement strategy (to be known collectively as ‘the safety case file’), be reviewed by the JCA every five years, or any time there is a substantial refurbishment planned, or following an incident or significant concerns being raised.
Whilst these recommendations will certainly apply to new-build HRRBs, the Report also recommends that those responsible for HRRBs (owners, etc.) collate a set of minimum building data on existing buildings to identify and evaluate existing risks. This information will form the safety case file for existing HRRBs and will be presented to the JCA once the new regulatory framework is established.
The difficulty facing many existing owners is that there is a lack of adequate safety information available for existing buildings. Where information cannot be obtained, the responsible person will need to explain to the JCA what steps they have taken to mitigate any potential risks. If a building owner has acquired an existing building without being provided with the necessary information by the seller, it is likely that the JCA will require less information from them than they would expect in the case of new buildings. However, as a result of these requirements we may see property lawyers submit more detailed requisitions when acting for buyers of HRRBs as well as a move towards insurance products specifically designed to cover any shortfalls in the safety information that the seller is required to provide.
In the final instalment in this blog series, I will look at how the procurement process may be affected and what steps the industry has taken in the months since the Report’s publication.
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