In August 2023, the government finally published the secondary legislation that will bring the design and construction requirements of the higher-risk building (“HRB“) regime under the Building Safety Act 2022 into force, on 1 October 2023. This is the date originally planned by the government for implementation but clearly there is now limited time for those involved in HRB developments, to get to grips with the legal requirements. The Health & Safety Executive has also published a useful guide to the new building control regime: Building Control: An overview of the new regime (hse.gov.uk)
There is now a huge raft of secondary legislation implementing elements of the Building Safety Act and more is expected but the most relevant in relation to the changes coming on 1 October are the:
- Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, SI 2023/909;
- Building Regulations etc. (Amendment) (England) Regulations 2023, SI 2023/911; and
- Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023, SI 2023/906.
Together these regulations implement a new legal regime applicable for the design and construction of HRBs. HRBs are buildings that are at least 18 metres in height or have at least seven storeys (other regulations set out what is and is not to be considered in calculating the height or number of storeys) and contain at least two residential units. There are some exceptions (including hotels) but mixed use developments which meet this criteria will also come within the new regime and not just residential parts.
The HRB regime consists of new building control procedures together with related changes to how approved inspectors (now building control approvers registered in accordance with the legislation) operate. There are also ‘duty holder’ roles imposed on clients, principal contractors and principal designers to ensure compliance with building regulations and that those involved in all elements of the works are competent (these roles also apply to work in non HRBs). Generally, parties involved in building work on an HRB will be required to follow a prescriptive building control approval ‘gateway’ process before works can start and before completed buildings can be occupied. Approval must also be sought before implementing significant changes to the works. It will be mandatory to compile and maintain a ‘golden thread’ of information on the works for each HRB , which will continue to be maintained when the building is occupied. In addition there are new ‘duty holder’ roles imposed on those responsible for the building once it is occupied.
The new building control regime will be overseen by the Building Safety Regulator (“BSR“) as part of the HSE, which will act as the building control authority in respect of all HRB works. The BSR has strengthened existing building control powers and new enforcement tools, which will be available to all building control authorities not limited to HRBs . Compliance notices can be served requiring corrective action by a set date, with failure to comply a criminal offence. Stop notices can also be served requiring all specified work to stop until the contravention is rectified, again failure to comply will be a criminal offence.
Although the new regime comes into effect on 1 October there are transitional arrangements which apply to developments already ‘in flight’. Essentially for these arrangements to apply and for the works to remain within the existing building control framework:
- the initial notice must have been given to a local authority (and not be rejected), or full plans must have been deposited with a local authority (and not be rejected) before 1 October; and
- the HRB work must be ‘sufficiently progressed’ by 6th April 2024.
‘Sufficiently progressed’ for the construction of a new HRB is when the pouring of concrete for the permanent placement of the trench, pad or raft foundations or the permanent placement of piling for the building has started. If work to an existing building, when that work starts or if a material change of use when work to effect that change of use has started.