The Building Safety Act 2022 imports a new regulatory regime for higher-risk buildings, but much of the detail has still to be finalised. Here's what we know so far.
One of the promised features of the new building safety regime was a three-stage building control process for "higher-risk buildings" (HRBs). The Building Safety Act establishes the Building Safety Regulator who will establish and implement the new building control stages, but much of the detail has yet to be passed into law.
An outline of the regime is set out in the draft Building (Higher-Risk Buildings) (England) Regulations, published in October 2021. The draft Regulations describe the requirements for what was formerly referred to as "Gateway 2" and "Gateway 3". Gateway 1, which requires consideration of building and fire safety for HRBs as part of local authority planning applications, came into force on 1 August 2021.
The Government undertook a public consultation about the draft Regulations over the summer, but has yet to publish revised drafting or confirm an implementation timetable. Further regulations defining the full scope of HRBs are also yet to be finalised.
HRB work: The draft Regulations apply to "HRB work", defined as the construction of a HRB, works to an existing building that causes it to become a HRB, and any work required to make a HRB compliant with the Building Regulations. Repairs and maintenance works to existing HRBs does not appear to be included.
Building control approval: Gateway 2 is now referred to as "building control approval", which must be approved before HRB works commence. Detailed guidance is provided about documents and information to be provided by the client (or someone acting on the client's behalf) to the Regulator, including to-scale building plans, design documents, construction control plans, fire safety plans, and declarations that the construction and design team are "competent" as defined by the Act. It is anticipated that the Regulator must determine applications within 12 weeks of the application. The Regulator must give reasons for any rejection, and may make any approval conditional on remedial actions or amendments to the key documents. Partial approval may also be sought for any part(s) of a project.
Completion certificate approval: Gateway 3 is now referred to as "completion certificate approval" Completion certificates must be applied for after completion of the works and be approved before the building can be legally occupied. Much of the required documentation comprises finalised versions of the documents provided at building control approval stage. The client, principal designer and principal contractor must also provide declarations that the HRB works have been carried out in accordance with the Building Regulations. As above, it is anticipated that the Regulator must determine applications within 12 weeks, give reasons for any rejection and may impose conditions on any completion certificate. Partial completion certificates may also be sought for any part(s) of a project.
Change control applications: The Regulations impose a new change control process in respect of HRB work, divided into "major changes" (which must be approved by the Regulator before the change is carried out) and "notifiable changes" (which must be notified to the Regulator and can be carried out unless the Regulator responds within 14 days). It is anticipated that the Regulator will determine a change control application within 4 weeks, must give reasons for any rejection and can impose conditions on any approval.
Mandatory occurrence reporting: The draft Regulations require clients and key dutyholders to establish and maintain a reporting system for "safety occurrences", defined as anything relating to the structural integrity or fire safety of a HRB which, if built, would be likely to present a risk of significant deaths or serious injury.
Golden thread information: A key component of the new building safety regime was the concept of a "golden thread" of building safety information for HRBs, developed during the design and construction stage and made available to those responsible for the building during its occupation. The draft Regulations define "golden thread information" as an electronic portal containing all information submitted with all building control, change control and completion certificate applications and any mandatory occurrence reports. Clients will be required to provide golden thread information to the Accountable Person or responsible person for the building as a pre-condition of applying for a completion certificate.
Key building information: The draft Regulations also define a list of key building information which must be given to the Regulator for storage in an online portal. The information must also be provided to the Principal Accountable Person before the completion certificate application is made.
Review and appeal: The Regulations also set out the review and appeal process for any decisions made by the Regulator or its inspectorate, though key dates for reviews and appeals have yet to be finalised.
Format of applications: The Regulations state that the Regulator shall give directions as to the format of any applications and supporting documents, including any requirements for electronic submission. Given the requirements for information to be passed between different parties and organisations, it is anticipated that most documents will need to be provided electronically.
The new regime will require extensive changes to the construction industry. It is anticipated that most building contracts and consultant appointments will require redrafting. Contracting parties will need to agree who is responsible for submitting applications, appropriate duties of care for any information provided and how any delays or required additional works will be handled. It is hoped that the Government and the Regulator will act soon to finalise the details of the regime, so the industry can get to grip with the changes.
