The Building Safety Act (BSA) 2022 received Royal Assent on 28 April 2022: this was, however, only the first step on the journey to overhauling the building safety regime in the UK, which was brought into sharp focus by the Grenfell Tower tragedy. The regulatory framework which underpins the BSA is set to be brought into force over a period of 18 months from Royal Assent. As reported in our earlier insight, a number of provisions of the BSA came into force on 28 June 2022, and further rafts of secondary legislation are expected to be issued in late 2022/early 2023.
Proposed overhaul of the building control regime and potential impacts on project management
One of the key parts of this new regulatory framework is the implementation of a more stringent building control regime, to be overseen by the Health and Safety Executive as Building Safety Regulator (BSR), for higher-risk buildings. These are defined in the BSA as buildings in England that are at least 18m in height or have at least seven storeys. Based on the draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations issued in 2021 (but since withdrawn) as well as the consultation on these planned regulations, these are expected to include buildings containing at least two residential units, and hospitals or care homes during the planning and construction phases.
The more stringent regime is intended to provide "strengthened regulatory oversight and rigorous inspection of building regulations requirements before, during, and on completion of building work, ensuring that building regulations compliance is considered by dutyholders at each stage of design and construction". One of the ways in which the BSA sets out to achieve this goal is by prescribing three mandatory 'Gateways'. However, the BSA itself does not define the planned Gateway regime, and the explanatory notes accompanying the BSA provide only limited further detail, stating that "[g]ateways policy will be implemented through statutory instruments in England, which will set out the practical details…"
As we reported in our insight, in July 2022 the Government published its Consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings. This sheds further light on how the Government proposes to implement some of the key elements of the building control regime under part three of the BSA.
In certain respects, the proposals go even beyond Dame Judith Hackitt's recommendations in terms of the information that dutyholders will need to provide in order to demonstrate how proposed building work will comply with building regulations' requirements. The consultation paper identifies where its proposals represent a shift from the previous regime or the recommendations, and explains that the rationale is to "support industry culture change by encouraging dutyholders to move away from seeing building regulations compliance as a 'tick box' exercise, towards an outcomes focused approach".
Many construction industry bodies or associations are co-ordinating and providing responses to the consultation (as well as to the second consultation published at the same time, relating to the occupation of higher-risk buildings, which is beyond the scope of this Insight). With the closing date – 12 October 2022 – fast approaching, more industry participants may also wish to take the opportunity to respond and 'have their say', in the hope that their responses may shape the regulations that will follow next year. This can be done by completing the online consultation survey or by emailing responses to the questions in the consultation paper to BuildingRegulationsConsultation@levellingup.gov.uk.
We consider below some of the detail set out in the consultation paper.
Proposed Gateway regime - points to be aware of:
As we reported in our insight in February 2022, Gateway one (the planning permission phase) is already in force. Gateways two and three are planned 'stop/go' decision points that must be passed before a development can proceed to the next stage.
Gateway two (approval prior to commencement)
Principles and definition of "commencement" of building work
Applications for building control approval ("Gateway two" applications) are intended to replace the current 'deposit of full plans' stage under the Building Regulations 2010. Gateway two represents a "hard stop" whereby BSR approval must be obtained before building work on higher-risk buildings may commence. It will be an offence for dutyholders to commence building work without approval from the BSR.
In order to provide clarity both to industry and building control bodies as to when work can be considered to have "commenced", the consultation paper sets out (in section 11.16) a proposed prescriptive definition of the "commencement" of building work. This varies slightly depending on the construction method. Both definitions include "[c]ompletion of the sub-structure of a building up to and including the foundations and any basement levels", the "laying of foul and surface water drainage" and the installation of the "ground floor structure" or "ground level supporting structure". The first proposed definition also includes "construction of walls up to damp proof course level". Views are sought as to whether these proposed definitions of commencement are appropriate.
Gateway two will apply irrespective of whether building work on a higher-risk building has planning permission before the new regime comes into force, as planning permission and building control are two entirely separate regimes.
Early engagement and dialogue with the BSR is encouraged – the Government is "keen that the new hard stop gateways process should not slow down build plans". Dutyholders are therefore encouraged to provide two weeks' advance warning to the BSR before submitting their application, as well as providing draft plans and documentation in advance to allow design approaches to be discussed before the application is formally submitted.
It is proposed that the application itself may be made by either the Client, Principal Contractor or Principal Designer and that it should be submitted electronically, via a "digital system" (although there will be discretion to accept paper copies). The applicant will need to provide plans as well as a number of other new prescribed documents, including a competence declaration, planning statement, design and build approach document setting out the proposed standards to be used, fire and emergency file, construction control plan describing the strategies for managing building work to maintain building regulations compliance, change control plan, and a description of the mandatory occurrence reporting framework.
The proposals include provision for a "staged approach" to building control approval applications (described as a "hard stop in stages") in "legitimate scenarios" where some information is unavailable and waiting for it could delay construction, e.g. in complex builds. In such scenarios, it is proposed that BSR approval would be given in stages and work would not be permitted to proceed beyond the specified stage.
Time limits for BSR's decision
The proposed time limit for BSR decisions is 12 weeks from the date of the application, although the BSR and applicant will be able to agree extensions where required. The BSA also inserts a new section 30A into the Building Act 1984 (although this provision is not yet in force) under which an applicant may apply to the Secretary of State under a "non-determinations procedure".
Where the BSR has not reached its decision within 12 weeks and the applicant has not taken action (by either agreeing to an extension or submitting a section 30A application), it is proposed that the application will be deemed refused. This represents a "significant shift" from the current regime: the rationale being to ensure that proposals which have not been appropriately scrutinised are not "approved by default" and that the "hard stop" intended by Dame Judith Hackitt is always implemented.
Gateway three (completion certificate)
Gateway three represents a further "hard stop" for higher-risk buildings at the current completion certificate / final notice stage (under which currently, local authority building control / approved inspectors undertake a final inspection to ensure work complies with all applicable building regulations before issuing a completion certificate / final certificate). It will be an offence to occupy a higher-risk building or part thereof before a completion certificate has been granted for the building or the relevant part, and before the building has been registered (sections 76-77 of the BSA).
On completion of building work on higher-risk buildings, applicants will be required to submit a "completion certificate application" to the BSR with updated plans and prescribed documents. This is intended to increase regulatory oversight by ensuring a more thorough inspection of "as-built" rather than "as-planned" building work, and ensuring that any changes that occurred during construction are approved by the BSR.
Content and timing of the completion certificate application
The consultation paper sets out the proposed list of key information to be submitted to be BSR as part of the completion certificate application. This includes updated plans and a "golden thread statement" which confirms that a copy of the "golden thread information" has been provided to the relevant person, as well as updated prescribed documents reflecting the final "as-built" building and compliance declarations from the Client, Principal Designer and Principal Contractor.
As we explained in our recent insight, "golden thread" information must be held digitally and encompasses all the information the applicant has to submit as part of the building control application, as well as all other information about the building which ensures that it is safe. Section 8 of the consultation paper contains further details about who bears responsibility for the "golden thread" at various stages of a project, with it being passed from the Principal Designer during the design phase, to the Principal Contractor during construction, to the Client upon completion of construction (although the Client retains "high-level overall responsibility" for ensuring arrangements are in place for it to be created and managed).
However, at present there is very little guidance as to the required contents of the "golden thread" or the software platform(s) that may be proposed for its use. The consultation paper states merely that the Government "intends to provide" such guidance to help parties "identify what information/copy documentation is relevant and should be retained".
The intention is that the completion certificate application should be made "once all the building work has been completed". However, the consultation paper acknowledges both the importance of the timing of this application for the developer, and the fact that the completion of building works frequently cannot be clearly defined as snagging items often remain outstanding. Accordingly, views are sought as to whether a dutyholder should be able to submit a completion certificate application either:
- when all notifiable building work has been completed; or
- when all work (including snagging) is completed; or
- at another time.
All too often, however, parties to a construction project may find themselves in disagreement or dispute as to whether "all the building work has been completed". This will need to be carefully considered in contracts to ensure that projects which are in dispute do not also end up in regulatory limbo, incapable of being granted a completion certificate, registered and ultimately, occupied.
Time limits for BSR's decision
Similar to Gateway two, the proposed time limit for the BSR to decide an application for a completion certificate is 12 weeks. Where the BSR has not issued its decision within this timescale, and the applicant has neither agreed an extension nor taken action under the non-determinations procedure in s. 30A of the Building Act 1984, then (as in Gateway two) the application will be deemed refused.
How this 12-week period for BSR approval will impact upon the achievement of practical completion, and the associated payments tied to that, is an issue that parties will have to grapple with, and make provision for, in their contracts. Parties will also need to consider and clearly define who bears the risk of delays caused by a rejection of the application / requests for further information by the BSR.
The consultation paper also provides further detail as to how the transitional period might look. This is typically a period of between two to twelve months following a change to building regulations, during which those who have already notified a building control body of their plans, and have commenced building work, are allowed to continue under the existing rules.
The Government had previously proposed that developments which fall within the new regime and are already underway should nonetheless be required to go through Gateways two and three (i.e. with no transitional period). However, following a prior consultation, it has recognised industry concerns and softened this stance, concluding that the proposed approach is "not viable" – and that "viable" and "straightforward" transitional plans are needed to ensure that the regime works in practice.
This is likely to be welcome news to parties already involved in projects where the underlying contracts do not make provision for the new regime, including allocating the risk of any delays to the approval process under Gateways two and three as outlined above.
However, the Government remains concerned about developers attempting to "game" the system and avoid the more stringent new regime. In order to benefit from the proposed six-month transitional arrangements, the proposal is that developers will need to both:
- submit an initial notice or deposit full plans by the date the new regime comes into force; and
- commence work "in line with the proposed new definition of commencement" (described above under "Gateway two") on the individual building within six months from the date the new regime comes into force.
If developers comply with both of these steps, then a building may continue to be supervised by the existing building control body and be subject to the building regulations in place at the time of submission of their initial notice or full plans application. However, whilst the building will not be subject to the more stringent design and construction regime, it is proposed that it will still be subject to the occupation requirements under part four of the BSA (which are also currently under consultation). These include the registration of the building with the BSR by the accountable person, as well as compliance with ongoing duties to manage building safety risks during what is being referred to colloquially as the "occupation" phase.
Other topics upon which views are sought in the consultation paper considered above include new dutyholder and competence requirements on all building work and additional duties for those working on higher-risk buildings, additional requirements for building work carried out in existing higher-risk building work e.g. refurbishments, stronger change control during the construction of higher-risk buildings, a mandatory occurrence reporting system in higher-risk buildings, and wider changes to the building regulations to align the existing system with the new system.
If you have any questions about the topics raised in this article, please get in touch with Sue Ryan, Gemma Whittaker or Sean Garbutt.