Brad Woodroffe is a senior associate at law firm CMS Cameron McKenna Nabarro Olswang
The wait is over for the new regulatory framework for the design and construction phase of higher-risk buildings (being non-excluded buildings of at least 18 metres or seven storeys and which contain at least two residential units, or are hospitals or care homes) in England, which have been anticipated following the Building Safety Act 2022.
“It is key that a client ensures its designers and contractors have the necessary competencies to meet the new duty-holder requirements”
As expected, the new regulations will come into force on 1 October 2023, although subject to the various transactional arrangements, and follow many of the proposals made by the government in its consultations between July and October 2022, which the government has also responded to.
Among the regulations are the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (SI 2023/909), which specify the procedural requirements when a new higher-risk building is being designed and constructed or when building work is being carried out on an existing higher-risk building.
The key points
- Gateway 2: before building work, or a stage of building work, can begin on a higher-risk building, an application must be submitted to, and approved by, the Building Safety Regulator (BSR). This introduces a new “hard stop”. The information required for this stage is prescribed. As expected, the BSR, on receipt of a valid application, has 12 weeks (eight weeks for work to an existing higher-risk building) to notify the applicant and determine the application beginning with the date the application is received.
- The client must give the BSR at least five working days’ notice before starting higher-risk building work on site.
- Building work in existing higher-risk buildings follows different building-control routes depending on the work that is being carried out.
- Changes are controlled with some requiring BSR approval (BSR has six weeks to determine a valid change control application for “major changes”, as defined).
- Specific information and documents must be kept as part of the golden thread of information before building work begins on a higher-risk building. This golden thread of information must be kept electronically and handed over to occupation-phase duty-holders on completion. The digital nature of this facility is not prescribed so as to allow for innovation, but it must be kept up to date, be able to effectively deliver safe outcomes, and must be transferable. Use of building information modelling standards is encouraged and further guidance on golden-thread requirements is expected.
- A Gateway 3 application, or applying for a completion certificate, is also a new “hard stop” before occupation and the BSR has eight weeks to determine the application, which is less than the 12 weeks expected. A Gateway 3 application can only be made once completion is achieved and full as-built plans will need to be submitted. Completion seems to include the completion of snagging work, as all applicable requirements of the building regulations must have been complied with before a completion certificate can be issued. However, the government has said that it intends to work with the BSR to consider how to provide clarity about snagging work.
- Transitional provisions apply in different circumstances. Broadly speaking, the various transitional provisions in respect of higher-risk buildings may apply where an initial notice describing the higher-risk building work has been given to a local authority and accepted before 1 October 2023 (or full plans describing such work have been deposited, and not rejected, with a local authority before 1 October 2023) and the works have been “sufficiently progressed”, depending on the type of building work, within six months.
As expected, where the applicant and BSR agree, the prescribed time periods for BSR decision-making can be longer than specified and/or Gateway 2 and/or change approvals can be subject to requirements that must be met. If the BSR asks the applicant for agreement to a time extension or requirements, which, for example, involve a subjective element, the applicant seems likely to be put in a tricky position, as it might reasonably be assumed that refusal would result in a rejected application.
Also among the new regulations are the Building Regulations etc (Amendment) (England) Regulations 2023 (SI 2023/911), which specify new duty-holder and competence requirements that will apply to all building work, including that undertaken on higher-risk buildings. Clients, consultants and contractors must comply with various obligations, and it is key that a client ensures its designers and contractors, including the principal designer and the principal contractor, have the necessary competencies to meet the new duty-holder requirements. These regulations also give a new definition of ‘commencement’ of work for existing and new buildings; and projects that do not meet the definition after three years from when the building-control approval was granted will suffer an automatic lapse of building-control approval.