The new building control regime for England has arrived

1^st October 2023 marked the coming into force of secondary legislation in England in accordance with the Building Safety Act 2022.

The consequences of this legislation are significant, particularly for buildings which meet the definition of a “higher-risk building”, not least criminal sanctions for non-compliance.

Here we discuss the new gateways that form part of the regime and the onus on accountable persons.

Is your building higher-risk?

A higher-risk building is any building in England which:

• (i) is at least 18 metres in height or has at least 7 storeys; and
• (ii) contains at least two residential units within it.

During the design and construction phase, hospitals and care homes will also constitute higher-risk buildings if they satisfy limb (i) above.

The accountable person

The accountable person (AP) for a higher-risk building is the person who owns the building or who is under an obligation to repair the common parts of building. Each building must have one clearly identifiable AP, known as the principal accountable person (PAP). As the legislation is yet to be tested, it is not currently clear how the PAP might be determined in cases of multiple APs for one building.

Gateway 2

The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 set out numerous rules on building control approval for higher-risk building work.

Carrying out works

To carry out any work to a higher-risk building (whether new or existing), a building control approval application must be made to the Building Safety Regulator (BSR), known as Gateway 2. The BSR will now be the only building control authority for all higher-risk buildings. There are very detailed requirements as to how this application is made and what should accompany it and a ‘hard stop’ has been introduced so no works can begin until approval from the BSR is received. The BSR must also be given five working days notice of any intention to commence works.

Changes

Any changes to higher-risk building work plans must be recorded in accordance with the specific record-keeping requirements set out under the regulations.

The BSR also plays a big part in changes. If a change amounts to a notifiable changes, this cannot be carried out until the BSR have been informed. The definition of a notifiable change is wide, including the change to a layout of a residential room or the change of dimensions of any wall or ceiling opening – including openings for cables.

If a change amounts to a major change, this cannot be carried out until the BSR have approved this change via the change control application process set out under the regulations. A major change includes a material change of use, change to the height or width of the building and a change to the structural design.

Gateway 3

When building work has been completed, an application for a completion certificate must be made, known as Gateway 3.

Again, there are detailed requirements around what this must include and what other documents must accompany this. It must include, for example, a signed statement confirming that to the best of the applicant’s knowledge, the completed building complies with all applicable requirements of the building regulations. The BSR is also entitled to require that an inspection of the site is carried out before a completion certificate is granted.

The additional steps and checks in the building process set out above will inevitably result in more focus on the practical management of construction projects and the drafting within construction contracts, particularly in relation to delivery of information, practical completion and delay risk.

Prescribed principles for APs and the PAP

The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023sets out a list of prescribed principles that must be complied with when an AP for a higher-risk building is taking steps to reduce building safety risks. This includes evaluating building safety risks that cannot be avoided, combatting building safety risks at source, giving priority to collective protective measures over individual protective measures and considering the impact on residents and engaging with them.

The common theme throughout the new regime of strict record keeping extends to APs who must keep information accurate, accessible, well managed and secure.

Until the principles are tested or further guidance is issued by Government, there are likely to be some practical questions as to what action might be required to satisfy some of these principles.

It is important to note that APs and the PAP cannot delegate their legal obligations to others.  They can employ someone to carry out duties on their behalf but the accountability for making sure those duties are carried out and the liability for a building’s safety remains with the APs and the PAP.

Register of Higher Risk Buildings

All buildings which meet the definition of a higher-risk building must be registered on The Register of Higher-Risk Buildings before they can be occupied. It is the PAP who is responsible for registering the building and it is now an offence to permit occupation of an unregistered building.

Conclusions

Given the main objectives of the Building Safety Act, it is not surprising that the new regime is a strict one which sets out prescriptive processes that need to be followed and significant consequences for non-compliance.  It is early days and the practical impact of the new regime is yet to be determined but it seems certain that the regime will impact all involved in higher-risk buildings.  It is important that everyone is aware of the new regime and any individual responsibilities within it.

How does Scotland compare?

These new regulations apply in England only and there is no equivalent regime in Scotland at present. Last month, it was confirmed that the Scottish Government will introduce a Cladding Remediation Bill as part of their legislative programme for 2023/2024 supporting the delivery of the cladding remediation programme. Please our previous blog here for more information.

Our Building Safety Group is comprised of specialists from practice areas across the firm, including construction and projects, real estate, health and safety, and banking. If you require assistance on building safety maters or would like to discuss the policy and legislative landscape and how it does or may affect your business, contact Caroline Maciver, head of our Building Safety Group, or Karen Manning.