Summary of new and proposed legislation, June 2021 (UK Construction Focus)

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Summary of new and proposed legislation, June 2021 (UK Construction Focus)

Summary of new and proposed legislation, June 2021 (UK Construction Focus)

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July 27, 2021

Dentons' UK Construction team prepare a monthly guide to new and proposed legislation affecting the construction industry for publication in Construction Law's "state of play" table. The June 2021 update is below.

Information contained in our COVID-19 articles and publications is correct at the time of print. This is, however, a constantly evolving situation across the globe and specific advice and guidance should be sought as required.

Recovery from COVID-19 pandemic
Planning
Insurance
Products
Fire Safety
Procurement
Net Zero

Recovery from COVID-19 pandemic
Site working hours	The Ministry of Housing, Communities and Local Government (MHCLG) has extended the temporary extensions to working hours to 30 September 2021. First introduced in May 2020, the extensions were implemented to facilitate safer working and allow tasks to be completed while social distancing rules were in place and creating challenges. (See the written statement of 25 March 2021.) This date will be kept under review.

Recovery from COVID-19 pandemic

Site working hours

The Ministry of Housing, Communities and Local Government (MHCLG) has extended the temporary extensions to working hours to 30 September 2021. First introduced in May 2020, the extensions were implemented to facilitate safer working and allow tasks to be completed while social distancing rules were in place and creating challenges. (See the written statement of 25 March 2021.) This date will be kept under review.

Planning
Inquiry into permitted development rights	Parliament's Housing, Communities and Local Government Committee has launched a new inquiry to examine the government’s approach to permitted development rights. Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. In 2020, the government legislated to permit conversion between a much wider range of commercial and retail premises. The inquiry will examine what impact that expansion of permitted development rights has had on the planning system.
Managing flood risk	In its report on Managing flood risk, the House of Commons Public Accounts Committee recommends that reforms to the planning system must ensure that the risks of building in areas liable to flooding are fully mitigated. It calls on the Department for Environment, Food and Rural Affairs (DEFRA) to strengthen its scrutiny of the Environment Agency (EA) and report on its new arrangements for doing so by July 2021. DEFRA and the EA should also: identify shortfalls in resources needed for effective management of flood risk areas; work with HM Treasury to reduce the adverse impacts of short-term funding cycles; issue a new set of national flood risk indicators to include all types of flood risk to ensure they provide a full picture of what is happening in terms of flood risk across England (including for homes, non-residential property, agricultural land and infrastructure); and assess and publish investment levels across regions and deprived areas followed by appropriate action to reduce funding inequality. Finally, planning policy guidance should be strengthened to avoid new builds in areas prone to flooding wherever possible. Alternatively, the EA should be involved in measures to mitigate the risk.

Planning

Inquiry into permitted development rights

Parliament's Housing, Communities and Local Government Committee has launched a new inquiry to examine the government’s approach to permitted development rights. Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. In 2020, the government legislated to permit conversion between a much wider range of commercial and retail premises. The inquiry will examine what impact that expansion of permitted development rights has had on the planning system.

Managing flood risk

In its report on Managing flood risk, the House of Commons Public Accounts Committee recommends that reforms to the planning system must ensure that the risks of building in areas liable to flooding are fully mitigated. It calls on the Department for Environment, Food and Rural Affairs (DEFRA) to strengthen its scrutiny of the Environment Agency (EA) and report on its new arrangements for doing so by July 2021. DEFRA and the EA should also: identify shortfalls in resources needed for effective management of flood risk areas; work with HM Treasury to reduce the adverse impacts of short-term funding cycles; issue a new set of national flood risk indicators to include all types of flood risk to ensure they provide a full picture of what is happening in terms of flood risk across England (including for homes, non-residential property, agricultural land and infrastructure); and assess and publish investment levels across regions and deprived areas followed by appropriate action to reduce funding inequality. Finally, planning policy guidance should be strengthened to avoid new builds in areas prone to flooding wherever possible. Alternatively, the EA should be involved in measures to mitigate the risk.

Insurance
ICE launches consultation on UK infrastructure planning system	The Institution of Civil Engineers (ICE) has consulted on the effectiveness of the UK’s infrastructure planning system to help determine whether the system is fit for the future. The role of the National Infrastructure Commission (NIC) is also being considered and, in particular, whether broadening the NIC’s scope from economic infrastructure to include social infra such as housing and green infrastructure, would help deliver better strategic planning outcomes. The consultation will feed into a final policy report to assist government and decision-makers when it comes to the next round of planning later this year.

Insurance

ICE launches consultation on UK infrastructure planning system

The Institution of Civil Engineers (ICE) has consulted on the effectiveness of the UK’s infrastructure planning system to help determine whether the system is fit for the future. The role of the National Infrastructure Commission (NIC) is also being considered and, in particular, whether broadening the NIC’s scope from economic infrastructure to include social infra such as housing and green infrastructure, would help deliver better strategic planning outcomes. The consultation will feed into a final policy report to assist government and decision-makers when it comes to the next round of planning later this year.

Products
Independent experts to review safety of construction materials	MHCLG has appointed Paul Morrell OBE and Anneliese Day QC to head up an independent review of how the current system for safety testing construction products could be improved. See Independent experts to review safety of construction materials. Recommendations are expected later in the year. The review forms part of the government’s ongoing programme of work to reform and strengthen building safety regulation and comes after testimony to the Grenfell Tower Inquiry exposed evidence of testing irregularities and potential gaming of the system by some manufacturers.

Products

Independent experts to review safety of construction materials

MHCLG has appointed Paul Morrell OBE and Anneliese Day QC to head up an independent review of how the current system for safety testing construction products could be improved. See Independent experts to review safety of construction materials. Recommendations are expected later in the year. The review forms part of the government’s ongoing programme of work to reform and strengthen building safety regulation and comes after testimony to the Grenfell Tower Inquiry exposed evidence of testing irregularities and potential gaming of the system by some manufacturers.

Fire Safety
New approach for reaching consensus	The MHCLG has published its New approach for achieving consensus between building control bodies and Fire and Rescue Authorities in building works in response to the government's fire safety consultation. This is a new sector-led approach developed by a Joint Regulators Group taskforce (led by Local Authority Building Control, National Fire Chiefs Council and Association of Consultant Approved Inspectors) which appears to offer a practical, voluntary solution to complement current arrangements. "The consensus reaching process can consider any case not already determined or set before the courts in relation to the fire safety aspects of the Building Regulations in proposed new and refurbishment projects, and considers legislation and guidance in determining best practice."
Government update on implementing Grenfell Tower Phase 1 recommendations	The government has provided an update on implementation of the Grenfell Tower Inquiry Phase 1 recommendations (the recommendations): Quarterly thematic update on progress against the Grenfell Tower Inquiry Phase 1 Recommendations. The update reports on the government's different workstreams including: "the progress of the Fire Safety Bill in Parliament and the Fire Safety Consultation; the review of the evacuation and 'stay put' strategy; and the delivery of technical solutions to enhance communications and emergency call handling". Progress in the last quarter includes: publication of a report by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, and the London Fire Brigade's progress on implementing the recommendations; the Fire Safety Bill's progression to the "Consideration of Amendments" stage in Parliament; the government's publication of its Fire Safety Consultation response; and the testing of the Fire Broadcast Talkgroup (radio channels) which has shown it is working effectively and will alert control rooms across the county in the event of rescue services becoming overwhelmed.
Architects' safety and sustainability guidelines	Following Dame Judith Hackitt’s recommendation that the Architects Registration Board (ARB) address fire safety in design as part of the competence levels required of architects (see Building a Safer Future), the ARB has published ARB safety and sustainability guidelines for architects. The guidelines focus on competency requirements on designing buildings both to protect and to provide means of escape and emergency access, and to ensure understanding of fire performance of materials specified for construction. The guidelines relating to sustainability require architects to operate under the principles of climate science in order to make informed and responsible decisions, act to minimise their negative impact on the environment, advocate for sustainable or regenerative design solutions, keep up to date and raise industry awareness, and encourage the industry to work towards a zero-carbon culture.

Procurement
Common Assessment Standard for construction procurement	Build UK, alongside the Civil Engineering Contractors Association, are rolling out the Common Assessment Standard "to improve efficiency and reduce cost in the construction pre-qualification (PQ) process". (See Construction Build pre-qualification system.) Three Recognised Assessment Bodies will certify companies once a year (at two levels: desktop and site-based). This certification can be accepted by contractors and clients who do not now need to specify a particular assessment body but can accept the certificates as demonstration of compliance with the relevant standards. The CLC has endorsed the Common Assessment Standard.
Post-Brexit cooperation between the devolved administrations	The Cabinet Office has published a non-legislative Public Procurement: Provisional Common Framework "to ensure continued co-operation between the government and devolved administrations in relation to public procurement" post Brexit. It is intended to guide the actions of all four nations' policy officials in the development of their public procurement policies. The Framework establishes agreed working practices between the devolved administrations (the UK, Scottish and Welsh governments, and the Northern Ireland Executive) on domestic and international public procurement policy and legislation and covers: consultation and exchange of information; development of policies and legislation; [engagement] with the DAs on World Trade Organisation Government Procurement Agreement (WTO GPA) business; international agreements; procurement-related proceedings; and resolution of disputes. The Framework acknowledges that there may be policy divergence and respects devolution and the democratic accountability of all the legislatures. Where divergence might affect other devolved administrations, the parties should try to reach agreement in areas of mutual interest.

Procurement

Common Assessment Standard for construction procurement

Build UK, alongside the Civil Engineering Contractors Association, are rolling out the Common Assessment Standard "to improve efficiency and reduce cost in the construction pre-qualification (PQ) process". (See Construction Build pre-qualification system.) Three Recognised Assessment Bodies will certify companies once a year (at two levels: desktop and site-based). This certification can be accepted by contractors and clients who do not now need to specify a particular assessment body but can accept the certificates as demonstration of compliance with the relevant standards. The CLC has endorsed the Common Assessment Standard.

Post-Brexit cooperation between the devolved administrations

The Cabinet Office has published a non-legislative Public Procurement: Provisional Common Framework "to ensure continued co-operation between the government and devolved administrations in relation to public procurement" post Brexit. It is intended to guide the actions of all four nations' policy officials in the development of their public procurement policies. The Framework establishes agreed working practices between the devolved administrations (the UK, Scottish and Welsh governments, and the Northern Ireland Executive) on domestic and international public procurement policy and legislation and covers: consultation and exchange of information; development of policies and legislation; [engagement] with the DAs on World Trade Organisation Government Procurement Agreement (WTO GPA) business; international agreements; procurement-related proceedings; and resolution of disputes.
The Framework acknowledges that there may be policy divergence and respects devolution and the democratic accountability of all the legislatures. Where divergence might affect other devolved administrations, the parties should try to reach agreement in areas of mutual interest.

Net Zero
Minimum energy standards consultation	The consultation into the Non-domestic Private Rented Sector minimum energy efficiency standards: future trajectory to 2030 by the Department for Business Energy and Industry Strategy (BEIS) has closed and a second consultation has been launched: Non-domestic Private Rented Sector minimum energy efficiency standards: EPC B implementation. The first set out the government’s preferred option to set a long-term trajectory requiring all non-domestic rented buildings to meet an EPC B by 2030 – which gained significant support. The target is ambitious and aimed at driving "clean growth" and reducing emissions across non-domestic rental building stock. The second consultation sets out proposals to ensure the policy can be delivered in practice and "explores in more depth the issues around implementation, enforcement and delivery of minimum energy efficiency standards for EPC B". BEIS intends to publish a single response to the consultations after the second one closes on 9 June 2021.
Industry call for action	The Construction Leadership Council (CLC) has announced Construction’s Net Zero Carbon Business Champions. Champions have signed up and committed to support CO2nstructZero, which aims to drive the construction industry towards reducing carbon emissions in the delivery and operation of the built environment. The CLC plans to publish firms' net zero progress. For an overview of CO2nstructZero, click here. An early step in the CLC's CO2nstructZero initiative is the CLC's report on the industry's progress towards decarbonising infrastructure: Good Progress But Not Fast Enough: Decarbonising Infrastructure. As its title suggests, the report concludes that the UK is unlikely to reach net zero by 2050 at the current rate of progress. It also makes a number of recommendations, including prioritising retrofit actions that will reduce the carbon impact of existing assets.
Consultation launched by BEIS on the role of biomass in achieving net zero	BEIS is running a consultation (the Role of biomass in achieving net zero: call for evidence), calling for evidence on the role of biomass in achieving net zero to help inform the development of the government's biomass strategy. Biomass is plant/animal matter used as fuel to produce electricity or heat. In particular, the government is seeking evidence on how sustainable biomass should be sourced and used to best support its net zero target. The consultation closes on 15 June 2021.
The Carbon Budget Order 2021	The UK government has published its draft Carbon Budget Order 2021 and corresponding explanatory memorandum. The Order sets the carbon budget for the 2033-2037 budgetary period at 965 million tonnes of carbon dioxide equivalent. Carbon budgets set a cap on the maximum level of the net UK carbon account for each five-year budgetary period. A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from BEIS.

Parts of this update were first published by Construction Law as the State of Play table 260 on 1 June 2021. You can subscribe to Construction Law's newsletter here.

Click here for our February 2021, March 2021, April 2021 and May 2021 legislation updates.