The new building safety regime takes shape


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The Building Safety Bill, which introduces a new regulatory regime for buildings in England, was presented in Parliament in June and published in July this year. 

The Bill passed its First and Second Readings in Parliament before being referred to the Public Bills Committee. At the time of writing, no date has been set for a Third Reading, but the Government's Transition Plan anticipates the Bill achieving Royal Assent by July 2022.

In the meantime, the Government has issued several pieces of draft secondary legislation that provide further detail on key parts of the new regulatory regime.

Definition of higher-risk buildings

The draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations provide further clarity on the scope of "higher-risk buildings", which will be subject to a stricter regulatory regime for their design, construction and occupation. The Bill defines higher-risk buildings as buildings in England that are at least 18 metres in height or with at least seven storeys and containing two or more dwellings. The draft Regulations provide useful guidance on height measurement, and confirm that hospitals and care homes meeting the height thresholds will be classified as higher-risk buildings for their design and construction. Secure residential institutions, temporary leisure establishments and military premises will be excluded from the higher-risk buildings regime for now.

Dutyholders and competency requirements

The Bill creates "dutyholder" roles with legal obligations in respect of building and design works for in-scope buildings, including a requirement for those working on buildings to be "competent". The draft Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations defines dutyholder roles of client, principal contractor, principal designer, contractor and designer, who have specific duties in respect of most building and design work currently covered by the Building Regulations 2010. Clients must ensure that any third parties they appoint fulfil competency requirements, while appointees must similarly ensure that their employers understand their own "client" obligations. Enhanced obligations and competency measures are expected to apply to dutyholders working on higher-risk buildings.

Gateways

In the Explanatory Notes published with the Bill, the Government anticipated the creation a three-stage Gateway approval regime for the design, construction and major refurbishment of higher-risk buildings, to be administered by the new Building Safety Regulator. The Bill itself was silent on specific requirements for each Gateway, with further detail promised in secondary legislation.

Guidance was published over the summer about Gateway 1, which came into force on 1 August this year. Gateway 1 requires that clients submit a Fire Statement as part of local authority planning applications for any higher risk building work, providing details about building and fire safety measures in the proposed plans.

In October, the Government published the draft Building (Higher-Risk Buildings) (England) Regulations, which provide extensive detail on the requirements for Gateways 2 and 3, covering the design and construction and major refurbishment of higher-risk buildings (HRB work). Key details are:

  • Gateway 2, now called "building control approval", must be applied for by the client (or someone acting on the client's behalf) and approved by the Regulator before HRB work can commence. Applicants are required to submit detailed information about the proposed HRB work, competency declarations in respect of the dutyholders undertaking the work, together with a range of supporting documents (including plans, design and build approach documents, fire emergency files and the planning statement from Gateway 1). The Regulator must approve or reject building control applications within three months and can approve an application subject to certain requirements being fulfilled.
  • Changes to the HRB work will be subject to a change control approval process. "Major changes" (as yet undefined) will require the client or applicant to submit a "change control application" to the Regulator for approval before the change can be implemented. The Regulator must approve or reject all change control applications within four weeks. "Notifiable changes" are required to be notified to the Regulator, though works are expected to be allowed to progress if the Regulator has not responded within a specified time.
  • Gateway 2, now called "completion certificate approval", must be applied for and approved by the Regulator when the HRB works have been completed. Clients or applicants must issue updated information about the as-built building, as well as a signed declaration from key dutyholders that the HRB work is compliant with the Building Regulations. The Regulator must approve or reject applications within three months, and can approve an application subject to specified requirements. Clients or applicants may also apply for partial completion certificate approval. Higher-risk buildings must not be occupied until a completion certificate or partial completion certificate application has been approved.
  • Clients for HRB work must collate and maintain "golden thread information", which must be provided to the Accountable Person for the higher-risk building (if known) prior to the completion certificate application being issued.
  • Clients must also submit "key building information" about each HRB works project to the Regulator, to be stored in an online portal set up for that purpose.
  • The draft Regulations require the Regulator to direct the way in which applications and information are provided, which may include requiring electronic submission. Further guidance is still awaited about the precise standards for electronic submissions.
  • Decisions of the Regulator on HRB work applications may be formally reviewed or appealed to the First Tier-Tribunal and/or to the Secretary of State.

Managing building safety risks in higher-risk buildings

The draft Higher-Risk Buildings (Prescribed Principles for Management of Building Safety Risks) Regulations set out useful guidance that Accountable Persons must follow to prevent "building safety risks" from materialising in the higher-risk buildings for which they are responsible.

Regulation of construction products

The draft Construction Products Regulations sets out the proposed new regime to strengthen regulation of the marketing and supply of construction products in the UK, as anticipated by the Bill. All construction products will be required to meet a general safety requirement, with stricter regulation of "safety-critical products" where the failure of such products would result in death or serious injury. The draft Regulations make it an offence to make false or misleading claims in respect of the performance of construction products and give the Construction Products Regulator broad powers to enforce the new safety regime.

Further information about the new legislation, including our Essential Guide to the Building SafetyBill, is available on our website.

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