Developers face significant challenges with the implementation of the new provisions of the Building Safety Act 2022 (BSA).
A firm date for the commencement of the new building control regime (new regime) provided for in the BSA has not yet been provided. A transitional plan published by the Government in July 2022 indicates that the provision of the new regime is intended to be brought into force within 18 months of Royal Assent to the BSA, which was given on 28 April 2022. As such, we expect that the new regime to be in force by October 2023. Commentary from the Health and Safety Executive (HSE) who act as the new Building Safety Regulator (BSR) anticipates that new regulations (required to give the new regime its practical effect) will come into force by then.
Here, we provide an overview of the proposed transitional regime governing the construction of higher-risk buildings (HRBs) under the BSA, including key issues for developers.
- The new regime
The new building safety regime under the BSA applies to both construction of new HRBs and the refurbishment of existing HRBs.
The new regime is likely to be extremely challenging for industry, in particular, it heralds:
- far more constraint around changes to initial designs, with considerably more up-front information required about design materials
- built-in delays of between 2 and 6 weeks for minor and major changes to design, respectively, whilst regulator approval is awaited
- an inability to apply for a completion certificate until all work, including snagging, is completed
- a further 12 week delay preventing residential occupation of the HRB at the conclusion of the build whilst regulator sign-off is sought (needed to obtain a completion certificate)
Where the new regime applies, dutyholders will need to meet a series of requirements during the construction phase. The current proposals include:
- Relevant functional requirements under applicable building regulations
- Commencement notices;
- Dutyholder and competence regulations;
- Compliance with inspection regime;
- New statutory change control process;
- Regulations related to a new client / Principal Contractor / Principal Designer;
- Mandatory occurrence reporting requirements;
- Golden thread information requirements to manage and store information relevant to the building work;
- Completion certificate applications / Partial completion certificate applications;
- Reviews, appeals and section 30A procedures;
- Enforcement powers applicable to higher-risk building work.
- Transitional arrangements
The government's 'Consultation on implementing the new building control regime for high-risk buildings and wider changes to the building regulations for all buildings' (the Consultation) set out the proposed transitional arrangements for implementation of the new regime in relation to buildings and projects underway before it comes into force.
Where full plans have been deposited or an initial notice submitted before the new regime comes into force, and works have commenced on the building within 6 months of the new regime coming into force, the existing building control regime will apply.
Where the existing building control regime applies, oversight will be exercised by the existing building control body and development should follow the relevant building regulation requirements in force at time of submission of the initial notice / full plans application. However, BSA requirements in relation to occupation, such as registration, will nevertheless apply to the building following completion. Therefore, the principal accountable person or relevant accountable person will have a duty to assess and manage building safety risks from ‘day one’ of occupation.
Where the deadline for submission of full plans or initial notice has not been met, the new regime will apply in full (from its implementation date).
- Transitional regime – a hybrid regime
A modified version of the new regime (the transitional regime) has been proposed, which is likely to be less onerous than the new regime. It would apply to those cases where full plans have been deposited or an initial notice submitted before the new regime comes into force but works have not commenced within 6 months of the new regime coming into force. It is anticipated that developers will try to take advantage of falling under this transitional regime.
Under the current proposals for the transitional regime, works can commence under the existing regime but, if works do not commence within 3 years of the original building control approval application, the approval will lapse and a new application must be submitted under the new regime. Where there is a multi-site project, work must have started on each specific building for it to benefit from the transitional arrangements.
At the end of the transitional period, the building will be transferred to the BSR for oversight, and the developer must send initial notice/full plans to BSR within 12 weeks after end of the transitional period. The BSR would not re-assess the plans but may require more information to demonstrate compliance. It will also have the power to stop works for 10 working days to allow for provision of information and consideration of that information by the BSR, and the power to require tests on work done. All other requirements of the new regime would apply, as would registration and other requirements under Part 4 of BSA in relation to occupied buildings following completion.
The transitional regime has so far only been communicated in the Consultation, and it may be that the arrangements ultimately implemented differ from those in the Consultation.
- What is meant by "commencement of works"?
The Consultation proposed narrowing the definition of 'commencement of works' to prevent developments falling outside the scope of the new regime due to developers simply breaking ground on a site before the transitional period is over, and then halting development ('gaming' of the transitional regime).
For new developments, commencement of works is proposed to be defined as either:
(i) completion of the sub-structure of a building up to and including the foundations and any basement levels, the construction of walls up to damp proof course level, the laying of foul and surface water drainage (within the footprint of the building) and the installation of the ground floor structure; or,
(ii) completion of the sub-structure of a building up to and including the foundations and any basement levels, the laying of foul and surface water drainage (within the footprint of the building) and the installation of the ground level supporting structure.
For refurbishment works such as re-cladding exercises, commencement of works is proposed to be defined as:
(i) work undertaken to install a new external wall system up to one complete floor level including the following as applicable: brickwork, cladding, windows, cavity barriers/fire breaks, insulation material, balconies and curtain walling; or
(ii) work undertaken to remove all components of the existing wall system up to one complete floor level including the following as applicable: brickwork, cladding, windows, cavity barriers/fire breaks, insulation material, balconies and curtain walling.
- Implementation dates
Developers should keep a close eye on the implementation dates of the transitional regime. Whilst the date for implementation is not set in stone, the government strongly believes the industry has had sufficient time to prepare to meet new building control requirements. However, commentary from the construction sector suggests concern as to the industry's capacity to resource the new regime in the outlined timeframe.
Developers should carefully review their existing and planned developments and monitor the consultation and its responses.
Documents governing design and construction of properties meeting the definition of a HRB should be carefully reviewed to ensure they are "future proofed" against probable changes in the Building Control regime as a result of the implementation of the provisions of the BSA 2022 and the Consultation.
When the new regime is implemented, developers should take stock of whether the regime in practice remains as onerous as proposed in the Consultation.
For those wishing to ensure ongoing projects are caught by the existing and transitional regimes, it might be advisable to proactively seek planning and commence work on developments wherever practicable to minimise the any potential additional cost and delay which could result from having to pivot to the new regime.
Legal Director, Global Investigations
Associate, Global Investigations