Context 172 - June 2022

20 C O N T E X T 1 7 2 : J U N E 2 0 2 2 Further reading All the Acts of Parliament and the model byelaws listed are available online on sites such as British History Online, the Wellcome Collection, and Harper, Roger, The Evolution of the English Building Regulations, 1840–1914, PhD thesis in two volumes, https:// etheses.whiterose. Ley, Anthony (undated) Building Control UK: a historical review, www. CIB1598.pdf Ley, Anthony (1990) Building control: its development and application, 1840–1936, MPhil thesis for the Open University, https:// 27775874.pdf Robert Huxford is director of the Urban Design Group. Photos by Robert Huxford, Patrick Meyer Higgins (photo correction) and Rob Cowan streets, generous garden space and cavity walls to eliminate condensation. The Public Health Act 1936 gave the power to all local authorities to make byelaws regarding buildings and sewers. This was a duty if so required by the minister, who was also given power to make local byelaws should the local authority fail. Building regulations The Building (Scotland) Act in 1959 gave the secretary of state the power to create building regulations. The first were published in 1963 and came into force in 1964. England andWales followed suit. The current system The Building Act 1984 introduced ‘functional performance standards’, setting out what in legal terms is adequate, reasonable or appropriate, supported in the Approved Documents by statutory guidance on how these standards might be achieved. What is the legal significance of statutory guidance as opposed to any government guidance? Case law holds that statutory guidance is a form of guidance that ‘should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses…’ and ‘…departure is acceptable only where there are clear and cogent reasons to do so’ (see the case of R (Munjaz) v Mersey Care NHS Trust). The 1984 act gave the secretary of state powers to create building regulations, but in so doing ‘to have regard, in particular, to the desirability of preserving the character of protected buildings that are of special historical or architectural interest’. This act displays features of its antecedents: drainage, structural performance, fire, water supply and so on, and supervision, inspection and approval. The act introduced competition into building control, by creating ‘approved building inspectors’. It had a strategy of making the system self-funding. We move from this period to the present day by way of the privatisation of the Building Research Establishment in 1997; the Building Regulations 2010 and Building (Approved Inspectors etc.) Regulations 2010; the Deregulation Act 2015; the climate change adaptation and mitigation duty; the 2030 Net Zero target; confusion over whether local authorities might legally set energy standards that exceeded the standards in the building regulations; the Grenfell Fire and the inquiry, where a QC stated that materials producers ‘were content to push hazardous products into the marketplace and sought to market them dishonestly’ (something that that regulatory system and its institutions had clearly failed to prevent); the Building Safety Act 2022; and proposals for a golden thread regarding information kept on the construction and modification of individual buildings. Reflections The story of building regulation and control is one of belated action in response to crisis, and of continuing tension between the protection of the public and private profit. From the time of Hammurabi, and before, some people have traded on the basis of their reputation and some on the basis of what they can get away with. Perhaps the majority sit somewhere in between. It has been characterised as a battle between big government and private freedoms, with strong forces campaigning for deregulation. Small wonder that under-resourcing has been continual, and action dilatory. It is easy for government at all levels to appear to make improvements by introducing legislation, yet actually doing little, by the simple expedience of not employing fit and proper persons in sufficient numbers.The losers in this battle have been the private citizen and the public at large. This story ends, for the moment, with the shameful tragedy of the Grenfell Fire, and the legacy of millions of new homes built over the past two decades that are wholly unfit for the wholly foreseen challenges of climate change. The Headington Shark (1986, added to the Oxford Heritage Asset Register 2022) is a detail that would satisfy the requirements of the model byelaws, were it made of an incombustible material.