Enforcement and investigation
Part 3 of the Bill focuses on the enforcement and investigatory powers of ‘enforcing authorities’.
This part contains a notable distinction between the UK regime and the proposed Welsh regime. Under the BSA, a centralised regulator, the Building Safety Regulator (“BSR”), oversees the higher-risk regime – including the design, construction and ongoing occupation of HRBs. Whereas the Welsh approach takes a more local, rather than national, authority-led approach with local councils or other authorities taking on the responsibilities.
Enforcing Authorities
‘Enforcing authorities’ is defined to mean either a ‘building safety authority’ or a ‘fire safety authority’:
- Building safety authority means a county council of county borough council for an area in Wales
- Fire safety authority means a fire and rescues authority in an area in Wales, or a fire inspector.
The White Paper leading up to the Bill considered different models for regulation, including a single national regulator. It was decided to place the functions on county councils, borough councils and fire and rescue services as a result of the ‘significant level of expertise’ they hold in relation to matters such as building control, firefighting experience and their familiarity with the buildings within their areas.
While this approach benefits from local expertise, a localised approach potentially will not have the advantage of a nationally consistent approach to enforcement.
Powers given to ‘enforcing authorities’ include:
- Requesting information – this enables requests for information from enforcing authorities under prescribed circumstance, with it being an offence for failure to comply with such requests.
- Compliance notices – if any person has, is or is likely to contravene a requirement that the authority has the function of enforcing, a compliance notice can be issued requiring steps to be taken to remedy or avoid the contravention. ‘Urgent action notices’ can be issued where there is an imminent risk to people or regulated buildings.
- Prohibition notices – fire safety authorities can issue prohibition notices regarding the use of buildings where it considers that the use of a building will, or is likely to, involve a fire safety risk that would affect the ability of people to escape in building. These are currently available under a.31 of the Order, however the Bill goes further by, for example, requiring certain steps to be taken upon receipt of a notice. Contravention of a notice and failing to take the required steps is an offence.
Enforcing authorities also have the ability to authorise a person, in writing, to exercise their functions on their behalf (i.e., an ‘authorised officer’), if they are suitably qualified to perform that function.
Authorised officers, when investigating compliance with requirements, or any other function, that the enforcing authority has authorised them to do, have the power to enter premises:
- Where a premises is not being used as a residential unit, and where authorised officers feel it necessary for a relevant purpose, may enter premises at a reasonable time of day and on reasonable notice. Force can be used if necessary and where a warrant has been issued.
- Where a premises is being used as a residential unit, where it is necessary for a relevant purpose and where a warrant has been issued, enter the premises
Authorised officers may bring any person required for their purpose, be accompanied by a police officer, search the premises, examine, measure or test anything on the premises, and where necessary take samples, photographs, copies or records or seize anything that is evidence of an offence.
Offences
Generally, offences under the Bill align with those under the BSA – with some notable extensions.
The Bill provides that it is an offence for an accountable person for a regulated building to contravene a requirement placed upon them by the Bill, or any regulations made under it, where that contravention places one or more persons in or about the building at a significant risk of death or injury.
This is a similar offence to that under the BSA, but it has a wider scope as it applies to all regulated buildings. Similarly, while it is a defence under the BSA to have a ‘reasonable excuse’, under the Bill, there is a more proactive requirements to prove that you have ‘taken all reasonable steps’ to avoid committing the offence.
The Bill, like the BSA, also specifies that it is an offence to recklessly or knowingly provide false or misleading information to an authority. But, again, the Bill goes further and the offence is widened to include simply recording or keeping known false information.
This requirement is reinforcing the importance of the Golden Thread and the accuracy of information and the impact it has on the safe operation of a building throughout its lifecycle.
These information related offences can face unlimited fines or potential imprisonment.
Under both the BSA and the Bill, a special measures manager can be appointed to carry out the building safety functions of the accountable person(s) where there has been a serious failure, or where there have been repeated failures, to comply with applicable duties. The special measures manager provisions under the Bill will only apply to Category 1 regulated buildings, aligning with the approach under the BSA to HRBs.
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