Building Safety Act – New building control regime for higher-risk buildings and building regulations changes for all buildings

Last Thursday the Government finally published its response to the consultation on implementing the new building control regime for higher-risk buildings (“HRBs”) and wider changes to the building regulations for all buildings. Coming in close to 200 pages, it is by no means light reading. In conjunction with the response, several new regulations were laid before Parliament to address the various changes to the building control regime. This most recent outpouring of legislation will take some time to review and digest, with more detail to follow in subsequent blogs.

At this point, some key highlights include:

• Timeframe: The new regime will come into force on 1 October 2023.
• HRBs Transitional Provisions: While there are transitional provisions for HRBs, these are subject to:
  1. an initial notice having been submitted (and accepted) or full plans deposited with the Local Authority before 1 October 2023 (“Condition 1”); and
  2. the HRB works be “sufficiently progressed” (which for new HRBs means the pouring of permanent foundations) within six (6) months of the new regime coming into force (i.e. by 6 April 2024) (“Condition 2”).

Provided the conditions are met, the applicable HRB works will proceed under the existing Local Authority or approved building inspector (“ABI”) regime.

If Condition 1 is not met, the works will be subject to the new regime with the Building Safety Regulator (“BSR”) being the building control authority.

If Condition 1 is met but Condition 2 is not, the work will be transferred to the BSR, the appliable process being dependent on whether the works were originally overseen by a Local Authority or an ABI.

With the date to remain under the existing regime just over a month away, will there be a rush of applications for initial notices/full plans deposited for HRBs, or will developers cautiously await as the new building control regime beds in?

• Defining Commencement of Building Works: As part of the wider changes to the building regulations, amendments will be made to enforce what is claimed to have always been the Government’s intention – the automatic lapse of building control approval where work has not commenced within three (3) years. To support this, within the Building Regulations 2010 the Government is defining what constitutes commencement of work, with separate definitions for new buildings, works to existing buildings and complex buildings. These definitions will apply to all building works, not just HRBs.
• Building Safety Regulator & Gateways: The Government accepts that more clarity on the new regime is needed, stating that the BSR will publish full guidance on the Regulations once they are laid in Parliament. Notwithstanding the recent release of the Regulations, it does not appear that such guidance is yet available.

As for the new building control gateways, the BSR has up to 12 weeks to respond to applications for building control approval (Gateway 2). A quicker response could it seems be facilitated by the quality of an application as well as early engagement with the BSR in relation to complex or unusual designs. Evidently, a validation process for applications will be provided to check if an application is valid; however, the extent to which this will in fact shorten the timeframe for approval is to be seen.

As for Gateway 3 (completion), originally the Government proposed a 12-week timeframe for the BSR to determine an application. There was however considerable objection by the Consultation respondents with concern over the severe impact this timeframe would have for building works. Acknowledging this, the statutory time limit for determining a completion certificate application will be eight (8) weeks with it being envisioned that information could be shared with the BSR in advance of completion of the development to help facilitate a swift decision. Nonetheless, this still leaves many queries regarding the definition of Practical Completion under a building contract as well as who will be responsible if Gateway 3 is not successfully passed.

Finally, an extremely important change from the current building control process is that a non-response from the BSR to a building control application WILL NOT be considered an approval by default. Rather, if the BSR does not decide an application within the required time limit or any agreed extension thereto, an applicant cannot proceed and will need to seek recourse via an appeal to the Secretary of State.

The above is just the tip of the iceberg with regard to the changes being introduced by the new building control regime. Hence, the next few months will be an extremely interesting, challenging and busy time for the built environment as we await further details and guidance from the Government and BSR, and come to grips with this massive transformation to the construction industry.

If you have questions about the Building Safety Act, the Building Safety Fund or any cladding and/or building safety issues, please contact Brenna Baye or any other member of our Building Safety and Cladding Team.

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