Charis Beverton is a partner at law firm Winckworth Sherwood
Since last summer’s general election, development conversations have centred around Labour’s target of building 1.5 million homes over the next five years. In December, we heard the prime minister again double down on that pledge as part of the government’s ‘plan for change’.
“Problems have been exacerbated by uncertainty and barriers to engagement with the regulator”
Much of the focus has been on identifying changes to the planning system to achieve this goal. However, the government has so far overlooked factors affecting the deliverability of homes when it comes to another major policy area: building safety.
While the focus is on future pipelines, developers are grappling with widespread regulatory uncertainty and long-tail liabilities that are stalling the construction of new homes, particularly social housing. With further reform potentially on the horizon – as the government considers recommendations from the second phase of the Grenfell Inquiry report – we need to see far greater attention and resources dedicated to helping the sector make sense of existing legislation if we are to unleash the housebuilding that Labour wants to see.
Prioritising communication
We are now 14 months on since the gateways for the new regime under the Building Safety Regulator (BSR) started to come online. While large parts of the industry have made positive progress, it is hard to overstate the fundamental shift in the approach to design and build from an iterative to a front-loaded design approach. This problem has been exacerbated by uncertainty and barriers to engagement with the regulator.
Communication – or lack thereof – is a major gripe for design teams. As developers submit plans via the new gateways system, the BSR is limiting face-to-face meetings and pre-application advice, while providing only limited feedback on proposals. This is creating a perfect storm of uncertainty, with speculative plans put forward and refused without a clear rationale. We’re seeing cases where applicants are finding it harder to understand why developments are failing to meet requirements, with a lack of engagement where queries arise on complex schemes.
This is alongside the BSR doing away with its email system in favour of an online portal. While this may seem like an efficiency, it only creates further delays as the relevant parties try to articulate complex building-safety issues against a tight character limit.
The regulator’s struggles with a lack of staff and general capacity to deal with the huge amount of queries it is receiving have been well documented, and is something that immediately needs to be addressed. The sector is ready and willing to meet this higher legislative threshold to ensure new buildings are safe; however, this can only be achieved with a two-way dialogue.
Guidance through the courts
In the absence of certainty and direction, we are seeing case law come to the fore as a guide to developers. The ruling at First Tier Tribunal in October that a roof garden counts as a storey within the definitions of the Building Safety Act (BSA) is just one example of where ambiguity is being cleared up in the courts or at tribunal.
Case law has always been important to rule on points of nuance within property development and, given the government’s recent Remediation Acceleration Plan, it seems likely that the high volume of BSA construction cases will continue. However, it is an inefficient and expensive method through which to determine fundamental elements of design and build – in this case, building height. Guidance via case law is unviable if the industry is to deliver homes at scale, and the knock-on risk is that it discourages investment and development.
In the meantime, there are strategies that developers can employ. It’s clear that traditional iterative approaches to design-and-build practices are no longer fit for purpose, with greater emphasis on upfront planning.
Procurement processes and contracts need to change accordingly, making sure that they are rigorous and specific around expectations from design teams and the risk allocation around changes. This would not only ensure that clients have the best advice, but protect them from risk as plans are presented to the BSR. Robust processes for managing and presenting information to the regulator would save time and minimise errors.
Building safer houses at scale is the common objective of all stakeholders, but better communication is essential to do this successfully. Until this has been remedied, the government will need to be careful about introducing further legislation in response to the Grenfell report as the sector continues to get to grips with the present requirements.
In the meantime, developers should maximise what they can do within current processes to find efficiencies with the regulator and get schemes approved. If we want to get Britain building, it will require all parties to collaborate to safely deliver the next generation of housing stock.
