This blog looks again at the Building Safety Act 2022 (BSA 2022), this time considering the three construction gateways that will apply at the planning, construction and completion stages in the development of higher-risk buildings. The regulations that will bring the new regime into force are expected in 2023. Developers therefore need to consider these requirements for upcoming projects.
Higher-risk buildings under the Building Safety Act 2022
The BSA 2022 has a significant impact on liability in relation to existing buildings (see our previous blogs here and here) and will make considerable changes to the building control regime, particularly in the construction of buildings defined as ‘higher-risk’.
The BSA 2022 provides that a higher-risk building during the construction stage will be one which is:
- at least 18 metres (or seven storeys) tall, and
- as described in regulations.
The draft regulations state that this will include buildings with at least two dwellings, or hospitals or care homes, but will exclude certain buildings including prisons, hotels and military premises.
Where the project involves the construction of a higher-risk building a more stringent building control regime will apply. The government issued a consultation on the new regime for high-risk buildings and the wider changes to the building regulations for all buildings which closed in October. The government’s response to the consultation and the final regulations are expected in the new year, so the below sets out what we currently expect, but may be subject to some adjustments.
Building control requirements for higher-risk buildings
Where work involves construction of a higher-risk building, the developer will not be able to choose the building control authority – the Building Safety Regulator (part of the Health and Safety Executive) (the Regulator) will automatically be the building control authority.
Three construction ‘gateways’ will apply. Gateway 1 is already in force and applies at the planning stage. The applicant must submit a Fire Statement to demonstrate that fire safety matters have been considered.
Gateway 2 applies before construction of the higher-risk building starts. The developer will need to submit a prescribed list of documents to the Regulator which includes, but is not limited to, plans, descriptions of the work, construction control plans and a design and build approach document. The developer will also need to provide a declaration that it is satisfied with the competence of the principal contractor and principal designer appointed to fulfil those roles under the new building safety dutyholder regime (which is outside of the scope of this blog). The Regulator will have 12 weeks to respond to the application. It will be an offence to commence work without gateway 2 approval. Developers will need to consider how this 12-week period will impact their procurement strategy and timing for the project.
Certain ‘major’ and ‘notifiable’ changes will also need to be submitted to the Regulator for approval where changes are proposed during the progress of the works. The consultation proposes that the Regulator will have six weeks to determine an application for a major change, and ten working days to respond to a notifiable change.
Gateway 3 is the completion gateway. The Regulator will assess whether the building has been completed in accordance with building regulations. The building cannot be occupied until the Regulator issues a completion certificate at gateway 3 – it would be an offence to do so. Again, the Regulator will have 12 weeks to respond, leaving a significant time between completion of the works and occupation by any tenant.
The ‘golden thread’ of information must also be created during the design phase and kept up to date throughout the construction phase. The golden thread must be handed over to the ‘Accountable Person’ responsible for the occupied building (see our previous blog here on building safety management). The government does not propose to mandate particular software that should be used for storing the golden thread, but the golden thread will need to be digital and kept up to date, relevant, useful and proportionate. Further guidance is expected from the government regarding the requirements of the golden thread.
The BSA 2022 will also make wider changes to the building control regime that will apply to all buildings, not just higher-risk buildings. This will include a new definition of commencement of work for the purposes of building control approval and a much stricter enforcement regime, including potential criminal liability for certain breaches.
In light of the above, parties to construction contracts will need to consider how the new building control regime will impact their projects, particularly including the gateways where it is a ‘higher-risk building’. Attention needs to be given to how the responsibilities for achieving the gateways will be allocated throughout the construction contracts, as well as which party will bear the risk of any delays occurring in connection with the Regulator’s review.
For a detailed briefing on the BSA 2022, please request a copy of our BSA 2022 Flowchart, which will help you navigate your way through this complicated piece of legislation by emailing realestatepsls@hsf.com.
This blog also appears as part of the Real Estate Development Yule Blog series considering the key issues concerning the real estate development sector this year. For all the blogs in the series please visit Real Estate Development Notes.
For further information, please contact:
Nicholas Downing, Partner, Herbert Smith Freehills
nicholas.downing@hsf.com
