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

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

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

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March 31, 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 March 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.

Brexit – the end of the Transition Period
Building regulations
Regulations
Housebuilding
Planning
Procurement
Building safety
Infrastructure

Brexit – the end of the Transition Period
Overview of key legislation	The UK and EU agreed a trade deal on 24 December 2020 (signed 30 December 2020) which came into effect from the end of the Transition Period (31 December 2020). The UK-EU Trade and Cooperation Agreement (TCA) governs significant aspects of the trade relationship between the UK and EU and is directly relevant to all businesses that trade in either direction between the UK and EU and indirectly relevant to others who deal with such businesses. The TCA establishes institutional arrangements to govern the TCA, sets up mechanisms to resolve issues arising from the TCA and governs core trade elements including trading goods, services, transport, data protection and GDPR, the level playing field provisions and Northern Ireland. Other agreements reached alongside the TCA are the Nuclear Cooperation Agreement and an Agreement on Security Procedures for Exchanging and Protecting Classified Information. The European Union (Future Relationship) Act 2020, which received Royal Assent on 30 December 2020, implements the TCA and other agreements relating to the future UK/EU relationship. Other legislation introduced to smooth the UK's exit from the EU after 31 December 2020 includes: the European Union (Withdrawal Agreement) Act; the Agriculture Bill; the Environment Bill; various financial services legislation; the Fisheries Bill; Immigration and Social Security Co-ordination (EU Withdrawal) Bill as well as the following that have attracted the attention of the national press. The United Kingdom Internal Markets Act 2020 which seeks to avoid regulatory divergence, ensure "seamless internal trade" and establish a level trade playing field between the four UK nations effective once the UK's devolved administrations (England, Scotland, Wales and Northern Ireland) assume new powers to regulate on a number of policy areas from 1 January 2021. The Trade Bill 2019-2021 will establish a new independent UK body, the Trade Remedies Authority (TRA), to protect UK firms against unfair trade practices and unforeseen surges in imports. Its measures empower the UK government to develop the UK trade policy following the UK exit from the EU.

Brexit – the end of the Transition Period

Overview of key legislation

The UK and EU agreed a trade deal on 24 December 2020 (signed 30 December 2020) which came into effect from the end of the Transition Period (31 December 2020). The UK-EU Trade and Cooperation Agreement (TCA) governs significant aspects of the trade relationship between the UK and EU and is directly relevant to all businesses that trade in either direction between the UK and EU and indirectly relevant to others who deal with such businesses. The TCA establishes institutional arrangements to govern the TCA, sets up mechanisms to resolve issues arising from the TCA and governs core trade elements including trading goods, services, transport, data protection and GDPR, the level playing field provisions and Northern Ireland.
Other agreements reached alongside the TCA are the Nuclear Cooperation Agreement and an Agreement on Security Procedures for Exchanging and Protecting Classified Information.
The European Union (Future Relationship) Act 2020, which received Royal Assent on 30 December 2020, implements the TCA and other agreements relating to the future UK/EU relationship.
Other legislation introduced to smooth the UK's exit from the EU after 31 December 2020 includes: the European Union (Withdrawal Agreement) Act; the Agriculture Bill; the Environment Bill; various financial services legislation; the Fisheries Bill; Immigration and Social Security Co-ordination (EU Withdrawal) Bill as well as the following that have attracted the attention of the national press.
The United Kingdom Internal Markets Act 2020 which seeks to avoid regulatory divergence, ensure "seamless internal trade" and establish a level trade playing field between the four UK nations effective once the UK's devolved administrations (England, Scotland, Wales and Northern Ireland) assume new powers to regulate on a number of policy areas from 1 January 2021.
The Trade Bill 2019-2021 will establish a new independent UK body, the Trade Remedies Authority (TRA), to protect UK firms against unfair trade practices and unforeseen surges in imports. Its measures empower the UK government to develop the UK trade policy following the UK exit from the EU.

Building regulations
Energy Performance of Buildings	The Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2020, in force from 28 December 2020, partially implements Article 15(1) of the Energy Performance Buildings Directive 2018/844/EU. It sets rules for assessing air-conditioning systems and requires that such systems be inspected to assess the capabilities of such systems to optimise performance.
Recent developments in building assessment schemes	The Building Services Research and Information Association (BSRIA) has published its White Paper which looks at developments in the building assessment schemes of the past 10 years. It looks at the differences between the BREEAM, LEED and WELL schemes, as well as energy, wellbeing and performance gap issues.

Regulations
Construction products post Brexit	The Ministry of Housing, Communities & Local Government (MHCLG) has published guidance for placing construction products on the "GB" market (England, Wales and Scotland, but not Northern Ireland) from 1 January 2021. See Construction Products Regulation in Great Britain (published 1 September 2020) and placing manufactured goods on the market in Great Britain (published 31 December 2020). EU law on construction products continues to apply in Northern Ireland. Guidance on goods placed on the Northern Irish market can be found here: guidance on placing goods on the NI market (published 23 November 2020). Other guidance includes Using the UKCA mark from 1 January 2021 (published 31 December 2020) on whether/how to use the new UK Conformity Assessment (UKCA) marking. The government has advised businesses to prepare for the end of recognition of the CE mark in the UK and affix the new UK marking using a UK-recognised "approved body" by 1 January 2022 (although some CE-marked goods may continue to be available in the UK market until 1 January 2022). For the government's frequently asked questions on the guidance, see here: https://www.gov.uk/guidance/construction-products-regulation-in-great-britain#frequently-asked-questions. Other institutions have published product-related guidance including: the Construction Leadership Council (CLC) has also published guidance: BREXIT: Conformity Marking of Construction Products Guidance (27 October 2020); the Health & Safety Executive's guidance on the manufacture and supply of new work equipment; and the Office for Product Safety and Standards (OPSS) has published guidance to help businesses comply with regulations as the Transition Period ends (19 November 2020).

Regulations

Construction products post Brexit

The Ministry of Housing, Communities & Local Government (MHCLG) has published guidance for placing construction products on the "GB" market (England, Wales and Scotland, but not Northern Ireland) from 1 January 2021. See Construction Products Regulation in Great Britain (published 1 September 2020) and placing manufactured goods on the market in Great Britain (published 31 December 2020). EU law on construction products continues to apply in Northern Ireland. Guidance on goods placed on the Northern Irish market can be found here: guidance on placing goods on the NI market (published 23 November 2020). Other guidance includes Using the UKCA mark from 1 January 2021 (published 31 December 2020) on whether/how to use the new UK Conformity Assessment (UKCA) marking.

The government has advised businesses to prepare for the end of recognition of the CE mark in the UK and affix the new UK marking using a UK-recognised "approved body" by 1 January 2022 (although some CE-marked goods may continue to be available in the UK market until 1 January 2022). For the government's frequently asked questions on the guidance, see here: https://www.gov.uk/guidance/construction-products-regulation-in-great-britain#frequently-asked-questions.

Other institutions have published product-related guidance including: the Construction Leadership Council (CLC) has also published guidance: BREXIT: Conformity Marking of Construction Products Guidance (27 October 2020); the Health & Safety Executive's guidance on the manufacture and supply of new work equipment; and the Office for Product Safety and Standards (OPSS) has published guidance to help businesses comply with regulations as the Transition Period ends (19 November 2020).

Housebuilding
Widening housing options for older people	Survey results from the Later Life Ambitions and the Associated Retirement Community Operators (see Coming of Age, Better housing provision for older people) indicate that older people's wants and needs do not match their available options. Those surveyed overwhelmingly supported government action to increase the provision of housing for older people.
Welsh housing investment	The Welsh government announced an investment of £35 million in its Innovative Housing Programme (27 November 2020) which will focus on projects such as low carbon housing, retrofitting to increase energy efficiency and offering training for prisoners in an effort to provide more affordable homes using local Welsh companies and supply chains.
Report on Starter Homes	The Public Account Committee (PAC) published its report on Starter Homes on 9 December 2020. The report notes that MHCLG has not delivered the 200,000 discounted Starter Homes for first-time buyers promised in 2015. Instead, a new policy with similar aims (First Homes) was consulted on in 2020 with implementation planned for 2021. The PAC report calls for "realistic, staged plans that will have a more realistic prospect of delivering homes".
Green Homes Grant	The Environmental Audit Committee (EAC) has published its letter to the Energy Minister, Kwasi Kwarteng. The letter follows the results of the EAC's survey, Energy Efficiency of Existing Homes, in relation to early experiences with the Green Homes Grant, which found that 86% of the 510 respondents had reported a poor experience with the process. The EAC asked the Energy Minister to respond, "outlining the action being taken to improve the scheme" by 22 January 2021.
Levelling up England's cities	The Housing Secretary has announced the Plan to regenerate England's cities with new homes which sets out new measures to help cities recover from the pandemic and deliver more homes across England. This followed a summer 2020 consultation seeking the views of planners, councils and the wider public. The government also intends to revise the 80/20 funding rule (used by Homes England to determine spending decisions) which provides that 80% of various Homes England funding budgets must be allocated to development in areas where property is most unaffordable (which tend to be in more affluent areas in the south of England).

Planning
Standard method for assessing local housing need	The government has consulted on its proposals to reform the current planning system as set out in Changes to the current planning system which closed on 1 October 2020. The Government response to the local housing need proposals in “Changes to the current planning system” (16 December 2020) sets out the consultation outcome and focuses on one of the four consultation proposals: changes to the standard method for assessing local housing need to plan for the delivery of 300,000 new homes a year. Feedback to the consultation raised concerns about: the determination of the levels of need for areas with too much strain placed on rural areas and insufficient on urban renewal; the rapid changes in how the country lives and works with implications for urban commercial and retail floor space; and risks to protected landscapes and Green Belt (in respect of which the government underlined its aim to strive to build more homes, but with sensitivity and care for the environment, heritage and the character of existing communities). The government therefore proposes to retain the standard method but with reform to reflect government commitment to levelling up to enable regeneration and renewal of urban areas in recovering from the COVID-19 pandemic. The government is considering the responses to the other proposed policy changes including: securing First Homes through developer contributions; temporarily lifting the small sites threshold below (with reference to developer affordable housing contributions); and extending the current Permission in Principle to major development.
Supporting housing and infrastructure delivery – planning reforms for public service buildings	MHCLG has consulted on permitted development rights, change of use and speeding up planning permission for public service infrastructure in England (see Supporting housing delivery and public service infrastructure). The proposals in the consultation, which closed on 28 January 2021, support the government's wider plans to reform the planning system, streamline planning processes, diversify the high street, repurpose brownfield land, meet the goals set out by the Prime Minister in his statement "Build, Build, Build", improve delivery of new infrastructure (including enabling classrooms and hospital spaces to be extended more quickly and further) and to address the challenges faced by retailers in town centres.
MHCLG amends planning application consultation guidance	MHCLG has amended several aspects of its consultation and pre-decision matters guidance including sections on why temporary publicity and physical inspection requirements for planning applications have been introduced; when changes expire; information that must be included in a publicity notice; whether an applicant of EIA development needs to make hard copies of the environmental statement available for inspection at a published address; and what a local planning authority, Secretary of State or inspector has to do to publicise any additional information, related to an environmental statement, it has received from an applicant.

Procurement
Meeting net zero targets: government consultation on transforming public procurement	The Cabinet Office has published a Green Paper: Transforming public procurement (15 December 2020) which sets out changes to the UK's future public procurement regime. The Green Paper addresses government spending leverage in the recovery of the economy, innovation of public service delivery and achieving the government's target of net zero carbon by 2050. The changes focus on achieving value for money and transparency to help reduce bureaucracy and widen social benefits. The plans have been developed with Brexit in mind and in the hope of increasing competitiveness, transforming the current "outdated system", providing flexibility to the public sector and alleviating the burden on business. The consultation runs until 10 March 2021.
Measuring social impact in public procurement (Scotland)	The Scottish Government published SPPN 10/2020: Measuring Social Impact in Public Procurement (9 December 2020) to clarify its policy on measuring social impact through procurement and to help those implementing this policy with sustainable procurement duty tools and a guide. The policy supports public bodies in using procurement to create jobs and supporting small and medium local businesses (SMEs) as part of the post-pandemic economic recovery. The policy requires public bodies to consider the positive social impact procurement will have on their community under the Procurement Reform (Scotland) Act 2014, and not just the monetary value of a project. Recognising that there is no "one size fits all" in assessing social impact: it is different for each specific community and can easily change over time, the Scottish Government has published statutory guidance for public bodies to properly consider social impact and sustainable procurement duty tools to assist public authorities in identifying opportunities in public procurement that produce the best social impact possible. Public bodies can assess their progress in embedding sustainable procurement using the Flexible Framework self-assessment tool available here.
EU Council to streamline EU public procurement rules to enhance economic recovery post COVID-19	The European Council adopted its conclusions Public Investment through Public Procurement: Sustainable Recovery and Reboosting of a Resilient EU Economy on 25 November 2020. The conclusions address the efficiency of public procurement rules and practices in the economic recovery from the COVID-19 pandemic. The recovery plan requires extensive investment in job creation while supporting green and digital initiatives. The conclusions focus on close coordination from all authorities to boost recovery, set the right incentives for sustainable growth and contribute to a resilient EU economy by using public procurement as a strategic tool.
JCT welcomes The Construction Playbook	The Joint Contracts Tribunal (JCT) has welcomed The Construction Playbook (8 December 2020) which acts as a guide for public bodies responsible for public procurement. The playbook recommends JCT contracts as a key standard form for use on public projects as they "can be used to help simplify and speed up procurement procedures", and recommends that best practice can be achieved by "applying a common approach across the public sector" which will, in turn, create certainty for the supply chain. JCT chair, Richard Saxon CBE, confirmed that the playbook will be considered when preparing the next edition of JCT contracts and that it "marks a significant collaboration between government and the construction industry to deliver a clear strategy to implement long-term and wide-reaching measures to improve public sector procurement".

Building safety
A digital golden thread of building information	The Building a Safer Future report published in May 2018 set out proposals for long-term reform of the building safety system. One recommendation was the need for "a digital golden thread of building information that was maintained throughout the lifecycle of a building". The Chartered Institute of Building (CIOB) and i3PT Certification (i3PT) has issued its research-based Golden Thread Report (1 December 2020), focused on "understanding the capacity and capability of the UK built environment to deliver and retain digital information". The report considers how to distribute responsibility for delivery of the golden thread, current capacity and the capability of the built environment to deliver, as well as potential blockers and solutions. While the industry agrees that change is required, the report acknowledges that it will take time, investment and leadership to effect change.
Homes England signs Building Safety Charter	Homes England became a registered signatory of the Building Safety Charter on 7 December 2020 (see link) and is calling on the industry sector to follow its lead. The Charter was developed by industry leaders with government support. It responds to the building safety review recommendation to seek to create positive cultural and behavioural change in the industry’s approach to safety in the built environment. "Registered Signatories commit to putting people’s safety first during the design, construction, refurbishment and occupation of residential buildings." Homes England has committed to leveraging its role in the sector "to change behaviour, and build a consensus around transparency, collaboration and prioritising the safety of residents".
Climate change and achieving net zero International progress	The World Green Building Council has announced 18 new signatories to the Net Zero Carbon Commitment, which increases the total to 128 signatories. The business and government signatories are committed to decarbonising the built environment.
Climate change conference	Preparations for the UN Climate Change conferences (COP26) to be held in November 2021 are building. On 2 December 2020, President Alok Sharma delivered a speech at the Carbon Market Institute's 7th Australasian Emissions Reduction Summit noting that to "meet the goals of the Paris Agreement, we must decarbonise the global economy up to five times faster over the next 10 years than we have over the past 20 years." To achieve this goal, Mr Sharma called on "all parts of society to increase their ambition, and to focus efforts on five critical areas: restoring nature, adaptation and resilience, clean energy, clean transport, and finance." Mr Sharma also emphasised the importance of the Race to Zero campaign, an alliance of cities, regions and businesses across the globe that are collectively responsible for 50% of the world's economy, and 25% of the world's emissions, "which have committed, through science-based targets, to reach net zero emissions by 2050 at the latest."
Update on UK progress (energy focus) Government sets the agenda for future UK energy policies	The UK government’s Energy White Paper: Powering our net zero future, on how the UK will clean up its energy system and reach net zero emissions by 2050, was published on 14 December 2020. Rather than setting a new strategic direction, or reporting on the implementation of specific policies, it provides a stock-take of current energy policies and of future, potentially significant, new policy development. The strategy runs alongside the Prime Minister's Ten Point Plan for a Green Revolution and involves: (i) decarbonising the energy system by replacing fossil fuels with renewable energy sources over the next 30 years; (ii) promoting a green recovery with the creation of new green jobs and industries; and (iii) protecting consumer interest (including by considering energy bills and providing warmer homes). The government also confirmed that a UK Emissions Trading Scheme will be in force. The UK/EU Trade and Cooperation Agreement underlines the government's commitment both to cooperate with the EU and set UK climate and environmental policies and systems of carbon pricing to achieve domestic goals. On 12 December 2020, the government published The UK's Adaption Communication to the United Nations Framework Convention on Climate Change (UNFCCC) 2020, setting out "what the UK is doing to prepare for the effects of climate change at home and to support those facing impacts overseas". This policy paper will be submitted to the United Nations Framework Convention on Climate Change together with the UK's enhanced Nationally Determined Contribution and the UK's Biennial Finance Communication, to meet the UK's commitments to mitigation, adaption and climate finance under the Paris Agreement. HM Treasury's interim Net Zero Review was published on 17 December 2020. It acknowledges UK progress in decarbonising the economy but highlights the collective effort and investment needed from households, businesses and governments to achieve net zero. The report explains the approach ahead of the final report, due next year, which will focus on: innovation and growth (including how to reduce policy uncertainty to encourage growth); UK competiveness; the impact on households; and how to embed the findings and the principles of the Net Zero Review into government policy-making. That approach is aimed at achieving a fair balance between the interests of businesses, households and the individual taxpayer.
Are we ready to face the challenge of meeting net zero?	The Association for Consultancy Engineering (ACE) and its sister organisation, the Environmental Industries Commission (EIC), published a joint report entitled "Are we ready? Delivering Net Zero in the built environment" on 8 December 2020. The report details the results of a poll across more than 130 net zero and sustainability experts working across different areas of the built environment. The report's findings demonstrate that few sectors rate highly, with challenges such as "client business models being incompatible with net zero pathways" and "disconnects between different regulators" hampering progress. The report calls for a "new, holistic approach which marries policy changes to new ways of delivering projects". One of the examples proposed is the use of the Construction Innovation Hub's Value Toolkit.
Scotland updates its Climate Change Plan	The Scottish Government has published an update (16 December 2020) to Scotland's 2018-2032 Climate Change Plan setting out the Scottish Government's pathway to the ambitious targets set by the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019. The update is also a strategic document on the Scottish Government's green recovery from COVID-19 and "a commitment to deliver an economic recovery from COVID-19 that helps us toward net zero emissions in a way that is just, and that maximises the opportunities to deliver a thriving, sustainable economy". The next full climate change plan is due to be delivered by early 2025. Four parliamentary committees (including the Environment, Climate Change and Land Reform Committee, the Rural Economy and Connectivity Committee, the Local Government and Communities Committee and the Economy, Energy and Fair Work Committee) have made a joint call for views on the plans. They will each, separately, scrutinise elements of the report under their remit and examine the ambition of the proposed actions across all sectors. The committees will report to the Scottish Parliament in March 2021.
The future of heat: synthesis report	The government's The Future of Heat: Synthesis Report (17 December 2020) draws together the findings from the first two phases of the Future of Heat project, which looked at public views on the transition to low-carbon heating in Britain, including: (i) "levels of awareness about the need to transition"; (ii) "current levels of understanding about the need to transition and some of the technologies available to do so"; and (iii) "investigating attitudes to various possible elements of such a transition". The research concluded that people are largely in support of the need for heating transition, with concern about climate change being the strongest driver of this position.
Scottish new-build heat standard – consultation	The Scottish Government has launched a consultation to seek public views on its vision for delivering the heating requirements of new buildings from 2024 onwards as proposed in its New-Build Heat Standard: scoping consultation published 9 December 2020. This consultation paper is evidence of the Scottish Government's commitment to ensuring that, from 2024, new buildings will have to use heating systems which produce zero direct greenhouse gas emissions at the point of use. The consultation closes on 3 March 2021.

Infrastructure
ICE report on delivering infrastructure projects through system approach published on 15 December 2020	The Institution of Civil Engineers has commissioned and published a report A Systems Approach to Infrastructure Delivery (SAID), which reviews the advantages of delivering complex infrastructure projects using a systems approach. The report states that the current delivery model leads to far too many projects running into serious problems with an increasing number delivered behind schedule, beyond the cost estimate and failing to meet the public's expectations. The report also notes that infrastructure needs to catch up with more technologically advanced sectors and capitalise on its increased role in the UK’s short and long-term plans. This can be avoided if the sector adopts a new model (the SAID) which embraces systems thinking, adopts successful practices common in other sectors and builds on the experience of the best-executed infrastructure projects of the past decade, such as London 2012. The report sets out eight guiding principles and other recommendations concerning leadership, culture and organisation of infrastructure projects to deliver better outcomes for owners and users. The main principles include: think outcomes, not edifices; close the gap between infrastructure and sectors adapting better to technological change; owners should own projects by giving direction on all aspects; future-proof projects by using the V-cycle process to establish systems architecture, manage technology development and upgrade it with minimal disruption; think shovel worthy, not shovel ready in front-end project development; bake systems thinking and risk management into the project DNA; encourage agile leadership which can adapt to multiple risks in complex systems; define and collaborate around shared data to increase productivity; and enable integration and improve operational performance.

Infrastructure

ICE report on delivering infrastructure projects through system approach published on 15 December 2020

The Institution of Civil Engineers has commissioned and published a report A Systems Approach to Infrastructure Delivery (SAID), which reviews the advantages of delivering complex infrastructure projects using a systems approach. The report states that the current delivery model leads to far too many projects running into serious problems with an increasing number delivered behind schedule, beyond the cost estimate and failing to meet the public's expectations.

The report also notes that infrastructure needs to catch up with more technologically advanced sectors and capitalise on its increased role in the UK’s short and long-term plans. This can be avoided if the sector adopts a new model (the SAID) which embraces systems thinking, adopts successful practices common in other sectors and builds on the experience of the best-executed infrastructure projects of the past decade, such as London 2012.

The report sets out eight guiding principles and other recommendations concerning leadership, culture and organisation of infrastructure projects to deliver better outcomes for owners and users. The main principles include: think outcomes, not edifices; close the gap between infrastructure and sectors adapting better to technological change; owners should own projects by giving direction on all aspects; future-proof projects by using the V-cycle process to establish systems architecture, manage technology development and upgrade it with minimal disruption; think shovel worthy, not shovel ready in front-end project development; bake systems thinking and risk management into the project DNA; encourage agile leadership which can adapt to multiple risks in complex systems; define and collaborate around shared data to increase productivity; and enable integration and improve operational performance.

Sections of this round-up were first published by Construction Law on 1 March 2021 as the State of Play table, number 257. You can sign up to Construction Law's newsletter here.