The new building control measures under the BSA came into effect on 1 October 2023 and transitional arrangements may apply from that date to developments already underway and which meet the transitional criteria set out in the transitional regulations. This means that these developments can continue on the current, well established and understood and less onerous building control framework.
For England the Building (Higher-Risk Buildings Procedures) England Regulations 2023 (the HRB regs) provide the technical and administrative details underpinning the new regime for Higher Risk Buildings (HRBs) as defined in the regulations: The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (legislation.gov.uk). There is a 6 month transitional period which starts on 1 October and comes to an end on 6 April 2024. Apart from those developments qualifying for transition, all building control applications after 1 October for new HRBs, including refurbishments or change of use to an HRB, will be dealt with by the new Building Safety Regulator (BSR).
Where building control for a development has already been dealt with and not rejected by a local authority before 1 October, that authority will remain the building control body, if the qualifying criteria referred to below are met.
Transitional Arrangement (TA) criteria (Schedule 3 of HRB Regs)
In order to qualify for the transitional arrangements for HRB work:
- The initial notice (IN) must have been given (and not rejected) by 1 October 2023 (limb 1A); or
- Full Plans deposited with Local Authority ( and not rejected) by 1 October 2023 ( limb 1B); and
- HRB work must be “sufficiently progressed” by 6 April 2024.
If the HRB development meets the above criteria it will carry on under the current (pre 1 October) regime i.e. building control will be undertaken by the local authority building control team or a private building control inspector and the more onerous BSA regime, including the gateway requirements will not apply. However, the “in occupation” requirements in Part 4 of the BSA will apply. Therefore it is best to think now about how to comply with those requirements and for example collect the necessary “Golden Thread” information during construction and arrange for its storage as prescribed by the BSA. This will mean that once the development is occupied the Accountable Person or Principal Accountable Person can comply with their various “in occupation” duties.
If the HRB development does not meet the above criteria it will pass to the BSR.
It will also be necessary for the Approved Inspector (AI) under limb 1A to be registered as a registered building control approver by 6 April 2024 to enable them to continue to supervise ongoing HRB work, if not the development will transfer to the BSR.
The TA criteria will also apply to non HRB developments. If the criteria are not met then the BSA provisions relevant to all developments will apply from 1 October. This includes the duty holder regime for the design and construction period i.e. the requirement for a Principal Designer and Principal Contractor fulfilling those duties.
Meaning of “Sufficiently Progressed”
New HRBs – this is when the pouring of concrete of the permanent placement of the trench pad or raft foundations or the permanent placement of that building has started.
For existing HRBS when the work has started and for work on a material change of use to an HRB when work to effect the change has started.
In both cases HSE has advised that “started” means the undertaking of permanent building works as described in the Building Control Application (BCA) and not site set up, demolition, stripping out or other temporary works. There must be a physical commitment to carrying out the works in the BCA.
The “sufficiently progressed” criteria will apply to individual buildings on a multi tower site not the whole site, this is to prevent commencement of Phase 1 for a multi building development bringing the whole development under the TA regime even though it may last for several years. Work must be sufficiently progressed on all buildings in order for the TA to apply to the whole development.
Notice that a development is “sufficiently progressed” must be given by the party carrying out the work before 6 April 2024 and no more than 5 days after the work is considered to have qualified as such. If the works are being conducted under Limb 1A then such notice must be copied to the Approved Inspector.
If completion of the works takes place under the pre 1 October regime the development will be granted a completion certificate from the relevant local authority ( which is a registered building control authority) or final certificate from the Approved Inspector which will satisfy the requirement for an Accountable Person to be in possession of a completion certificate before a HRB can be legally occupied.
Once under Transitional Arrangements – What ifs?
An HRB development can still transfer to BSR and the gateways will apply as appropriate if:
- full plans have not been deposited by 1 October 2023 or have been deposited and rejected before then; or
- an Initial Notice has not been given by 1 October in the case of Private Sector Building Control; or
- the works have not sufficiently progressed; or
- the building control approval lapses or is subject to enforcement.
This will also be the case if the Approved Inspector has not registered in accordance with the BSA registration requirements.
Initial notices may cease to have effect for a number of reasons, e.g. cancellation, Approved Inspector failing to register or obtain insurance.
Given the 6 April 2024 deadline a local authority must notify the BSR by 6 March 2024 if HRB developments for which it is the building control authority have not sufficiently progressed. This allows one month only for that to be corrected.
BSR may request further information in respect of transferred work. BSR will assess completed work and take a “risk based and proportionate approach to transfers”. BSR may also determine that full compliance with the new regime may not be necessary, dependant on assessments the BSR make on the works and if the works are sufficiently progressed.
The transitional arrangements are helpful for projects which have been through the existing building control regime by 1 October and are or are about to commence on site, but HSE have given a warning that developers and their professional advisors should not attempt to game the system by claiming that works are sufficiently progressed within the definitions set out above unless that is demonstrably not the case.