Building Safety Act | March 21, 2023

Building Safety Act 2022 (BSA) implementation – where are we now?

2023 has been cited as the “delivery year” for the BSA which received Royal Assent in April 2022 and there is an ambitious programme for its implementation this year. The key to bringing many of BSA’s requirements into force is the passing of secondary legislation by Parliament after public consultation.

The draft regulations relating to what constitutes Higher Risk Buildings (HRBs), known as the Higher Risk Building (Descriptions and Supplementary Provisions) Regulations 2023,  are currently before parliament ; the consultation for these having taken place last year, (see below). The consultations on professional conduct for those who will be Registered Building Control Approvers and the code of conduct for Registered Building Inspectors closed on 17 February. We are still awaiting updated draft regulations following the publication of the results of the consultation regarding implementation of the new building control regime for HRBs and wider changes to the building regulations for all buildings. Other consultations are ongoing.

Subject to any changes that may be made by parliament to the draft Higher Risk Building (Descriptions and Supplementary Provisions) Regulations 2023  (the Regulations), the following is of note for England and Wales (Scotland and NI will have their own regulations):

  1. The Regulations “complete” the definition of HRBs (currently only partially covered in the BSA by reference to the Building Act 1984) basically buildings over 18 metres or 7 or more storeys and containing at least 2 residential units as set out and supplemented below.
  2. BSA will be divided into two parts that which relate first to the “design and construction” of new works and second those that relate to buildings already “in occupation“.
  3. Hospitals, care homes and buildings containing at least 2 residential units will fall within the design and construction part (if over 18 metres or 7 or more storeys).
  4. The meaning of “building” is different depending on the part concerned as referred to in paragraph 3 above. For buildings to be built “building” refers to the entire construction of the development, so long as elements of it are attached one to the other, as opposed to being a separate building (see 6 below).
  5. For refurbishment/upgrading work and “in occupation” work, (i.e., work to buildings already occupied) “building” is more narrowly defined in certain circumstances.
  6. Sections of a wider building will constitute separate buildings if they meet a set of criteria – such sections to be known as “independent sections“. An independent section is a section of a wider building which has its own entrance and exit accessible from anywhere within a section and which either has no access to any other section or only has access to another section of the wider building which does not contain a residential unit.
  7. Height of a “building” is measured from ground level to the top floor surface of the top floor.
  8.  In counting them storeys below ground level and ones purely for roof-top plant or machinery are ignored.
  9. Certain buildings are excluded from the definition of HRB- hotels; “secure residential institutions” (eg. prisons) and military premises are excluded from both parts of the regime. Hospitals and care homes are excluded from the “in occupation” part because they are covered by other regulatory regimes but are not excluded from the design and construction part for new building works.

The aim is that the mandatory registration of existing occupied HRBs will open next month (April 2023) with a 6-month period to complete registration, by an “Accountable Person” (as defined by the BSA – essentially those responsible for repairing the common parts of a building). Information on how to register can be obtained from the HSE website.  The government has recently indicated that the April opening date is on course. It is estimated by the government that some 13,000 building will require registration, but the precise number is unknown.

The meat of the new regime is intended to come into force in October 2023, if everything goes to plan:

  • registration deadline for already occupied HRBs;
  • from then on all new buildings must be registered before being occupied;
  • the new Building Safety Regulator (BSR), which replaces the HSE, takes over all building control for HRBs;
  • register for building inspectors and building control approvers opens;
  • from 1 October BSR approval will be needed before any building work is commenced on an HRB.

This will be followed in April 2024 with a phased introduction of the Regulator being able to call in buildings for assessment and to issue Building Assessment Certificates in accordance with BSA. The aim is to start with HRBs which are considered to be of highest risk and it is anticipated it will take the Regulator 5 years to review all existing HRBs for the first time. The Regulations relating to registration of building inspectors and building control approvers will also become enforceable.

All implementation dates reflect current assumptions made for the roll out of BSA but may be subject to change/delay. However, it will be prudent for any property owners or developers of qualifying properties not to postpone their own preparation to comply with the legislation. The indications are that there is the political drive to achieve the published implementation dates, even if there is a mountain to climb, particularly in resourcing these new measures.

For the Building Control position from I October 2023 in the light of the Regulations published in August 2023, please see our Building Safety Update Sept 2023.