Design and construction of Higher-Risk Buildings under the Building Safety Act 2022
The long-awaited regulations which will govern how Higher-Risk Buildings are to be designed and constructed under the Building Safety Act 2022 were finally published on 17 August 2023, without any Parliamentary scrutiny and just six weeks before the new regime goes live.
This package of secondary legislation consisted of four statutory instruments, all of which will come into force on 1 October 2023 (but with a six-month transitional period running to 6 April 2024 applying to certain projects achieving a sufficient level of progress before that date):
- The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
- The Building Regulations etc. (Amendment) (England) Regulations 2023
- The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023
- The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023
Whilst the new regime contains few surprises and broadly follows the contours of what has been proposed and consulted on for several years, it does still represent a huge challenge for the construction industry to update and adapt its operational procedures to comply with all of the new requirements, including making changes to legal documentation. Even the transitional provisions are not as easy to navigate as some may have imagined.
Here, we take a closer look at some of the key priorities that will need to be addressed by developers, contractors and other professionals in the construction industry.
Changes to existing building regulations
The change affecting the widest range of projects is the much-heralded introduction of new duty holder and competency requirements. These will apply to all works that are subject to building regulations (including works relating to Higher-Risk Buildings), and as such have been introduced via amendments to the Building Regulations 2010 by the Building Regulations etc. (Amendment) (England) Regulations 2023.
As expected, duties on clients include planning, managing and monitoring the project to ensure compliance with all relevant requirements, and only appointing designers and contractors once all reasonable steps have been taken to check that the prospective appointee satisfies the competency requirements.
Conversely, designers and contractors must not take on any appointment unless they satisfy the competency requirements (having regard to the nature of the project), with additional requirements applying to principal designers and principal contractors who have an active co-ordinating role.
In reality, most of these requirements should in substance already be complied with, but going forwards, compliance with the new regime will need to be clearly documented to ensure that a full audit trail is kept.
Other changes to the Building Regulations 2010 affecting all works include:
- An amended procedure for building control approval in respect of non-Higher-Risk Building works which replaces the current "deposit of plans";
- A new and more stringent definition of "commencement" (which was previously only dealt with in guidance) and provision for the automatic lapse of building control approval after three years if commencement of works has not occurred, on a building-by-building basis; and
- The strengthening of provisions requiring fire safety information handover for buildings where the Fire Safety Order applies.
Higher-Risk Building works
For works involving the construction of a new Higher-Risk Building, the conversion or extension of a building to become a Higher-Risk Building, or works to an existing Higher-Risk Building, the Building Safety Regulator (the BSR) will be the sole building control authority.
The changes being made to the Building Regulations 2010 include provisions which disapply the usual building control approval and certification processes if Higher-Risk Building works are involved, and this will enable the new procedures set out in the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 to apply instead.
If a project involves both Higher-Risk Building works and non-Higher-Risk Building works which are being undertaken by the same principal contractor, then the client and the BSR can jointly agree to issue a "regulator's notice" to the local authority to ensure that the BSR will be the building control authority for all of the work on that project, with the non-Higher-Risk Building work element being assessed by the BSR under the usual building control approval process.
The new procedures for Higher-Risk Building works closely follow the Government's previous proposals, including:
- Hard stops at both the building control application stage ("Gateway 2") and the completion certificate stage ("Gateway 3") – but now with the detailed definitions of the full range of compliance documentation to be submitted at each stage being set out in the regulations;
- A change control procedure requiring certain changes in approved documents to be notified to the BSR and any major changes to first be approved by the BSR – largely following the definitions proposed in the consultation of "notifiable changes" and "major changes" (with further guidance to be issued);
- A mandatory occurrence reporting procedure by which major safety incidents are notified to the BSR; and
- A requirement to maintain a golden thread of information in an electronic facility incorporating all approved documents from Gateways 1 and 2, the change control log, any mandatory occurrence reports, any notified changes in the principal designer or principal contractor and a draft Gateway 3 application – though the regulations do not mandate any particular coding standards or exchange mechanisms, and only stipulate that the electronic data is capable of being transferred in a format which is uncorrupted, readable and intelligible to intended readers of the data.
None of the above is a surprise, although it is worth noting that the timeframe for the BSR to determine Gateway 3 applications is now only eight weeks instead of the originally proposed 12 weeks. The timeframe to determine Gateway 2 applications for works to existing Higher-Risk Buildings is likewise only eight weeks as opposed to the 12 weeks for Gateway 2 applications relating to new Higher-Risk Buildings. The timeframe for the BSR approving major changes remains at the proposed six weeks, despite concerns raised in the consultation that this could cause undue delay to projects.
Helpfully, the new regulations carve out certain minor works to existing Higher-Risk Buildings that will be excluded from the new building control approval regime, such as replacing baths, showers or washbasins where the drainage systems are not affected, or installing thermal insulation to suspended timber floors.
The BSR's costs in administering the new regime will be borne by the client, albeit such costs may well be passed to the principal contractor as part of any agreed contract sum. The BSR is empowered to set out a charging scheme under the Building Safety (Regulator's Charges) Regulations 2023, which were published on 6 September and which also come into force on 1 October 2023, although the actual amounts of the fees to be charged by the BSR have yet to be published.
The immediate focus for developers and contractors will be whether live projects fall within the transitional arrangements, to which the new regime will not apply. In principle, any project where full plans are deposited (or initial notice is given and accepted) before 1 October 2023, and where "sufficient progress" is made before 6 April 2024, will continue to be dealt with under the existing regime.
However, in the event that the full plans are rejected, or if the initial notice is cancelled for any reason at any time, or if the approved inspector fails to become a registered building control approver before 6 April 2024 – or indeed if sufficient progress is unexpectedly not made by that time – then a number of different complex permutations arise, resulting in either a full or partial application of the new regime. For any non-Higher-Risk Building work, a slightly different transitional arrangement test applies. Providing for all such eventualities in the legal documentation will not be a simple task.
Other legislative amendments
The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023 make consequential amendments to the corresponding 2010 regulations to ensure that private sector approved inspectors will not be able to supervise Higher-Risk Building work (just as local authorities won't be able to), thereby ensuring that the BSR will be the sole building control authority for such Higher-Risk Building work. The amendments also ensure that these 2010 regulations are aligned with the new dutyholders and competency regime.
Finally, the Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023 make consequential amendments to a wide range of other statutes to replace references to "deposit of plans" with references to "applications for building control approval" as well as other procedural updates to reflect the new building safety legislation.