Building safety: what’s in the latest legislation and what’s next?

On 17 August 2023, the Department for Levelling Up, Housing and Communities issued five sets of regulations deriving from the Building Safety Act 2022, together with three sets of responses to consultations on aspects of the new building control regime and safety risks for higher-risk buildings.

As usual, they all have snappy titles:

Here are some key points from these regulations, starting with the largest and most significant of the lot.

These regulations cover Building Control approval processes for constructing a new higher-risk building; working on an existing higher-risk building; changes taking place before or during the construction of a higher-risk building (or substantial refurbishment); the golden thread requirements; mandatory occurrence reporting; and information handover and completion certificates.

Section 31 anticipates forthcoming regulations which will cover the golden thread in detail: the Higher-Risk Buildings (Keeping and Provision of Information etc) (England) Regulations, which are due out next month.

Schedule 1 contains detailed descriptions of what should be included in competence declarations, the construction control plan, the change control plan, the building regulations compliance statement, the fire and emergency file and the partial completion strategy.

New definitions are introduced: “higher-risk building work” and “work to an existing higher-risk building”. “Higher-risk building work” is building work that creates a new higher-risk building, whether constructing a new building, adding storeys or changing an existing building to make it a higher-risk building. “Work to an existing higher-risk building” is any other building work to an existing higher-risk building which is not already covered by “higher-risk building work”.

One of the issues that has been of significant concern is the timescales within which the Building Safety Regulator will decide whether to allow development to commence at Gateway 2 and to sign off the completion certificate which allows occupation at Gateway 3. The Higher Risk Building Procedures Regulations confirm that the time taken for the initial assessment at Gateway 2 is 12 weeks, but for work on an existing higher-risk building, the equivalent period is eight weeks.

In relation to the issuing of a completion certificate, the time period for a response from the Regulator is eight weeks. Previously it had been thought that this would be 12 weeks. While it is welcome that the period is shorter, this is still significant and will need to be factored into development agreements. 

These introduce Regulator’s Notices, which can be used where a project comprises both higher-risk buildings and non-higher-risk buildings, allowing developers to use a single Building Control body for both categories of work on the same project.

They also introduce a new definition of “commencement” of work for existing and new buildings and automatic lapse of building control approval after three years from when the Building Control approval was granted for projects that don’t meet the definition of commencement. There are detailed provisions about what is to be treated as commencement of work incorporated in new Regulation 46A of the Building Regulations 2010.

Section 7 substitutes for the “deposit of plans” stage the “Building Control approval with full plans” stage (Gateway 2).  

This is one of a package of statutory instruments that provide for the implementation of the new oversight regime for Building Control bodies and Building Control inspectors. They cover the length of registration for registered Building Control approvers and registered building inspectors and allow for reviews of decisions made by the BSR in relation to registration. 

These are relatively short and outline in more detail how safety risks are managed during the in-occupation phase of the asset. They provide processes for building assessment certificates, engagement with residents and resident duties and appeals. They set out the principles for identifying and managing building safety risks and mandatory occurrence reporting. As such, they are aimed squarely at the principal accountable person and the accountable person.

These are very short and as the title suggests are concerned with consequential amendments to various miscellaneous statutes and orders.

There is a great deal to consider here. We can expect the regulations due next month to be equally substantial. In the meantime, we now have confirmation that the transitional period (for which there is detailed regulatory support in The Higher Risk Building Procedures Regulations) will begin in October and the industry has until April 2024 to get everything lined up and ready for full implementation of the Building Safety Act.

Simon Lewis is partner in the construction and engineering team of Womble Bond Dickinson.