Building Safety: new secondary legislation confirms building control regime will be in force from 1 October 2023

8 minute read
24 August 2023

On 17 August 2023, the Department for Levelling Up, Housing, and Communities (DLUHC) published a suite of secondary legislation implementing the more stringent building control regime for higher-risk buildings established by the Building Safety Act 2022 (BSA).

It also published its long-awaited response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings – which, as we reported in our earlier insight, closed in October last year.

Importantly, these confirm that the new building control regime will come into force on 1 October 2023.

We outline below some of the headline issues covered by each of the five statutory instruments published on 17 August, as well as the key takeaways.

New regulations implementing the building control regime

There are three new sets of regulations which relate to the design and construction phase:

1. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

These set out the details of the building control regime for higher-risk buildings (HRBs), specifying the procedural building regulation requirements when a new HRB is being designed and constructed or when building work is being done to an existing HRB. Amongst other things, they provide details of:

  • The process for, and what must be included in, "Gateway 2" applications, i.e. the application to be submitted to and approved by the Building Safety Regulator (BSR) before any work starts. This will replace the current "deposit of full plans" stage under the Building Regulations 2010 and introduce a "hard stop" whereby BSR approval must be obtained before building work on HRBs may commence.
  • The change control process, including "notifiable changes" and "major changes", and the requirement for the principal contractor to set up and maintain a change control log.
  • The golden thread of information and the procedures for handing the information over to dutyholders responsible for maintaining the building once construction has finished.
  • The requirement for the principal dutyholders to set up a mandatory occurrence reporting system and the procedure for reporting occurrences to the BSR.
  • The procedure and requirements for applying for a completion certificate, also known as a 'Gateway 3' application.

2. The Building Regulations etc. (Amendment) (England) Regulations 2023

These amend the Building Regulations 2010 to support the new higher-risk building control regime. These requirements will apply to all building work, including that undertaken on higher-risk buildings. In particular, these regulations:

  • Insert new dutyholder and competence requirements into the Building Regulations 2010 - these are new regulations 11A to 11Q. These requirements will apply to all building work, including that undertaken on higher-risk buildings.
  • Set out the new definition of what is to be treated as the "commencement" of work. This was previously only set out in guidance.

3. The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

These regulations primarily amend the Building (Approved Inspectors etc.) Regulations 2010 (the AI Regulations) to support the new higher-risk building control regime – under which the BSR will be the only building control authority for all HRBS - local authorities and approved inspectors will not be able to supervise higher-risk building work.

In addition, on 17 August 2023, the DLUHC also published:

  • The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023 - these amend the Highways Act 1980, the Clean Air Act 1993, and a number of local acts to, inter alia, bring these into line with the concepts and terminology of the BSA, to align with the transfer of the appeals procedure for all building control decisions in England to the First-tier Tribunal and the BSR's position as a new building control authority and oversight body for other building control bodies.

Key takeaways

We will be reporting in more detail on some of the key issues covered by the new regulations in due course. In the meantime, our top takeaways are as follows:

  1. The start date of the new building control regime is now confirmed as 1 October 2023. This leaves only a matter of weeks for those involved in HRB work to familiarise themselves with the new regime and establish whether they will be able to avail themselves of the transitional arrangements or will fall within the new regime.
  2. Gateways 2 and 3 will be in force from that date: parties involved in new HRB developments will have to grapple with and make provision for a number of issues in their contracts. These include how the specified periods for BSR approval will impact upon the achievement of practical completion and associated payments, and who bears the risk of delays.
  3. The long-awaited dutyholder and competence requirements - previously set out in separate draft regulations that were published in 2021 - have been incorporated into the Building Regulations 2010 (applicable to all building work). We will be analysing these in further detail in due course.
  4. As noted above, the transitional arrangements will be key. Whilst it has been confirmed that the transitional period will run for six months, to 6 April 2024, the conditions that must be met in order for the transitional arrangements to apply are complex. Please get in touch if you would like us to advise whether they apply to your particular circumstances.

In short, the suspense is over - but there is much still to digest, and more work to be done to prepare for the 1 October deadline.

If you have any questions about this article, please contact Sue Ryan or Gemma Whittaker.

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