Introduction
October marks the start of the full higher-risk building regime with new requirements under the Building Safety Act 2022 (the BSA) coming into force on the 1 October 2023. The previous changes, which are now well underway, saw the introduction of new roles and responsibilities relating to high-rise residential properties.
An objective of the BSA is to limit the consequences should a fire safety or structural failure incident occur. This will be achieved by ensuring that those responsible for the safety of higher-risk buildings are consistently and effectively assessing and managing risk to ensure the safety of residents and members of the public in or around higher-risk buildings.
Higher-risk buildings in England are identified as buildings that:
- have at least two residential units; and
- are either a height of at least 18m in height or seven storeys.
Registration deadline for occupied buildings
As stated in our April article, the deadline for registering occupied higher-risk buildings is fast approaching. The window for registration closes on the 1 October 2023. Failure to register an occupied higher-risk building by this date is an offence and could result in a fine, imprisonment, or both.
If you are the accountable person, steps must be taken now to ensure this deadline is not missed (this is the person responsible for building safety risk when a building is occupied. This may be the owner of the building or the party with a repairing obligation for the structure and exterior of the building).
Building control approval
Before commencing work on any new higher-risk building, developers will need to submit design applications to the Building Safety Regulator (BSR) for approval. The application needs to evidence how the design of the building will meet the building regulations, manage change control and assist duty holders in meeting legal requirements (including competence and in relation to the “golden thread” of information).
Until the application has been approved by the BSR, works must not commence. The BSR may require changes in the design before approval can be granted.
Once approved, there are a number of continuing obligations that must be carefully considered:
- Site inspections at milestone dates throughout the course of the works;
- Reporting requirements;
- Management of change;
- Flagging and storing the ‘golden thread’ of information about the building.
Registration of new buildings
From the 1 October 2023, all new higher-risk buildings must be registered with the BSR. Until the new building has been registered, units must not be occupied.
The application to register a higher-risk building should be submitted once a completion certificate has been issued. This will be issued by the BSR once they have assessed the application against the relevant building regulations, completed a final inspection of the building work and assessed the documents to be passed on to the building owner. Only when the BSR is satisfied with the building, will a completion certificate be issued.
Building Inspector and Building Control Approved Register
The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023 comes into force from the 1 October 2023. This amends the Building (Approved Inspectors etc.) Regulations 2010 (the AI Regulations) to support the new higher-risk building control regime and to implement a new oversight regime for building control bodies and building control inspectors.
The regulations have been brought in to strengthen the building control profession and sector by improving standards, raising competency and accountability. The changes are meant to streamline the building control process so that it works as efficiently as possible.
Under the changes the BSR will be the single overseer as the only building control authority for higher-risk buildings in England. All higher-risk building work will fall under the supervision of the BSR which means local authorities and approved inspectors will no longer be able to supervise higher-risk building work.
The 1 October will also see the implementation of a new registration system and process for building control approvers and registered building inspectors. This includes:
- First time registration process for individuals required to register as building inspectors with the BSR;
- A set period of 4 years as the registration length for building inspectors (after which building inspectors will need to re-register); and
- Registered building inspectors being required to meet the registration requirements set by the BSR including the Code of Conduct and follow the Building Inspectors Competence Framework.
The requirement to register with the Building Safety Register will affect approved inspectors and local authority building control inspectors.
The regulations also set out the procedure for notices to be provided in relation to higher-risk building work, making it unlawful for higher-risk building work to be included in an initial notice or amendment notice.
For non-higher-risk building work not overseen by the BSR, the local authority building control and approved inspectors will be expected to hold duty holders to account in delivering their duties in regard to competence requirements.
From 1 October 2023 there will be a transitional period with provisions set out in the regulations, this will allow approved inspectors to continue with higher-risk building work while they register as registered building control approvers. They will also be able to complete their work during this period. Any accepted work not started or not completed during the transitional period work will then be cancelled automatically at the end of the transitional period.
Any fees and charges schedule for registration of registered building control approvers and inspectors will be set out by the BSR in due course.
Building Safety Regulator
The BSR is a new role that was introduced through the BSA (specifically clause 2). The role will be undertaken by an independent regulator, which is part of the Health and Safety Executive (HSE) and will have its own powers, strategic plan and programme of work. The BSR will provide advice to building control bodies such as local authorities and fire and rescue services.
The main role of the BSR is to oversee the safety and performance of all higher-risk buildings, which includes hospitals and care settings that meet the criteria. The BSR will provide a robust and proportionate regime throughout the lifecycle of a building.
From the 1 October 2023, developers of higher-risk buildings no longer have the option to choose whether they want to use a local authority building control or a private inspector as their building control body. This role will now automatically be undertaken by the BSR.
The BSR will regulate building standards throughout the lifecycle of a building, including during the design, construction or any major refurbishment. Their main duties are described below:
- Overseeing the performance of other building control bodies (including local authorities and registered building control approvers) and understanding and advising on existing and emerging building standards and safety risks.;
- Advise the government and oversee and influence the competence and performance of the built environment;
- Implement the new regulatory regime for higher-risk residential buildings.
The new regulatory regime as mentioned above, will see the introduction of decision points. At such decision points, the BSR will assess whether duty holders are properly considering building safety and meeting regulations. There will also be a final decision point following completion of a building, at this point the BSR must ensure that the building is safe to be occupied.
Where non-compliance is identified, the BSR will take a transparent approach to clearly and promptly explaining the enforcement decision, the reasons, and the actions required to achieve compliance. The BSR will discuss reasonable timescales with the duty holder and explain what will happen should they fail to comply. In line with the transparent approach that the BSA adopts, the residents and other interested parties are to be informed of any enforcement action taken against a duty holder. This will be available via the Enforcement Policy Statement (EPS).
It is also worth noting that under the BSA, the BSR have had the responsibility of creating the following committees:
- Residents’ Panel – The BSR recruited a panel of 18 people in December 2022. This panel will be supported by organisations that represent high-rise building residents.
- Industry Competence Committee – 17 ICC members have now been appointed and are due to attend their first meeting in September 2023.
- Building Advisory Committee – This committee comprises of 13 members and held its first meeting in December 2022.
The Building Act 1984 (Commencement No. 3) (England) Order 2023
Section 33 of the Building Act 1984 (tests for conformity with building regulations) comes into force on the 1 October 2023. This applies to England only and gives building control authorities the ability to sample and test work by extending powers granted by regulations 45 and 46 of the Building Regulations 2010.
The power to sample and test work enables local authorities to assess work or proposed works to ensure building regulations are complied with.
Local authorities will have the power to require a person that has carried out or is proposing to carry out works to complete reasonable tests of or in connection with the works as required. The local authorities may also carry out testing themselves and take necessary samples to enable such testing.
Such testing includes the soil and subsoil of the site and testing of any materials, components or combination of components that has been, or is intended to be, used in the construction of a building.
Further information and guidance on the Building Safety Act can be found on the Health and Safety Executive Website or by contacting our Construction and Real Estate teams.
For further information, please contact:
Isabel Saunders, Hill Dickinson
isabel.saunders@hilldickinson.com
