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Transitioning to new building safety regulation

  • United Kingdom
  • Construction and engineering
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16-08-2022

Government consultation sheds light on how regulation for higher risk buildings will be implemented

Why should I read this?

The Building Safety Act 2022 brings into effect a new building control regime for higher risk buildings in England1.  This sets out what building control approvals are needed before commencement of the works and before the building can be occupied (which together are known as the “Gateway Regime”). It will also impose requirements on how information relating to the building work will be managed and stored.  These changes will have a major impact on the construction of higher-risk buildings, in particular affecting programming, completion requirements and responsibility for delay.

A draft implementation plan issued by the Government anticipates that these changes will come into effect 18 months after commencement of the Building Safety Act 2022 (i.e. on 28th October 2023). With such change afoot, developers may have concerns about how these changes will affect works that are planned or already underway. We are already seeing questions about whether or not contracts need to be amended to accommodate these proposals. 

On 20 July 2022, the Government opened up a consultation on how it will implement the new building control regime for higher risk buildings.  It is highly informative in outlining what it proposes as a transitional phase for implementation of the new regulatory regime.  Although it is not yet confirmed if the measures will take effect as proposed, they are a strong indication of what is planned and should provide the construction industry with some comfort when planning and contracting works that will lead into the implementation period.

How do these changes affect me?

Changes to the building regulations are usually accompanied by a transitional period (of between 2-12 months). This allows those that have already notified a building control body of their plans to continue to work under the old rules, provided that they have started building work on site. A similar interim arrangement is proposed for the implementation of the new regulatory regime for higher risk buildings (referred to here as the “transitional arrangements”). We have summarised the proposals below:

  • the transitional arrangements will operate for six months from when the new regime comes into effect
  • under the transitional arrangements a developer can continue to operate under the old rules for building control approval, i.e. without the need to comply with the Gateway Regime
  • in order to benefit from the transitional arrangements the developer must: 

1. submit an initial notice or deposit full plans by the day the transitional arrangements come into force; and
2. commence work, in line with the proposed new definition of “commencement” of work on an individual building, within six months from the day the transitional arrangements into force

  • any developer who has deposited plans but has not yet commenced work before the expiry of the six months after the transitional arrangements come into force will be transferred to the jurisdiction of the Building Safety Regulator and subject to the new regime
  • determining whether or not work has started will be monitored and determined by local authorities and approved inspectors.

This means that there should be a clear cut off as to when the new regime applies, so that construction projects are not caught by the changes midway through development.  This is welcome news to developers, as it avoids the need to introduce massive change requirements which would no doubt also cause significant disruption to projects.

However, the Government wants to ensure the transitional arrangements are sufficiently robust to stop developers being able to “play the system” and avoid compliance with new regulations.  For example, it wants to prevent a developer from starting the works early to benefit from the transitional arrangements, with no actual intention of truly starting or getting on with the works during that time.  It also wants to put into place clear guidelines on how multi-site projects, perhaps with sectional completion of individual high-risk buildings, are caught by the new regime.

Due to the practical complications of these provisions, and the need to balance fairness to all without giving developers a way to exploit the system, the Government has opened up a consultation on how the regulatory regime can be implemented.  We will have to await the outcome of this consultation and its resultant secondary legislation before we have the full picture on how the transitional arrangements will work in practice.  Until then this consultation provides a useful indication of the proposed trajectory of what’s to come.

What else do I need to know?

The Government’s consultation is open until 12 October 2022 and is available for review here.  We encourage our clients and contacts who are affected by the new proposals to submit their comments to the consultation for consideration. For interest, a summary of some of the key issues and proposals are outlined below. 

Issue

Proposal for consultation

What constitutes “the commencement of work” for the purpose of when such provisions are enforceable?

 

The definition of “commencement of work” should be the same for new buildings, as it is for work to existing buildings.

How should transitional arrangements operate on multi-site projects (where there is work to more than one building)

Where there is a multi-site project, work must have started on an individual building for that building to benefit from the transitional arrangements, so that a developer cannot benefit from the transitional arrangements for all buildings on the site.

What developments are caught by the transitional arrangements?

In order for the transitional arrangements to apply, the developer must:

  1. submit an initial notice or deposit full plans by the day the new regime comes into force; and
  2. commence work in line with the proposed new definition of “commence” on the individual building within six months from the day the new regime comes into force.

Provided that the developer does this they will be able to comply with the old regime.  Their work would be supervised by the existing building control body.

How long should the transitional arrangements operate for?

Six months from the date the regulations come into force:

  • any developer who gives notice or deposits full plans after this date will be caught by the new regulatory regime; and
  • any developer who has deposited plans but has not yet commenced work will be transferred to the jurisdiction of the Building Safety Regulator and caught under the new regulatory regime.

 

How will the transfer to the Building Safety Regulator work for developments that have already submitted plans, but have not yet commenced work, before the end of the transitional arrangements?

The Government expects local authorities and approved inspectors to inform the Building Safety Regulator (BSR) when work has not commenced by the end of the transitional arrangements.

The new regime for these buildings will be as follows:

  1. the person carrying out the work would need to send to the BSR the initial notice or the original deposited full plans within 12 weeks of the end of the transitional period
  2. the BSR will reassess the project and can require additional information.  If such information is requested, the work must be paused for 10 days for the information to be collected and considered by the BSR. It will be a criminal offence not to comply.

1.  A “higher risk building” is defined in the s.65 of the Building Safety Act 2022 as “a building in England that (a) is at least 18 metres in height or has at least 7 storeys; and (b) contains at least 2 residential units.  Further specifics are due to be published in regulations.  The draft proposals are under consultation and are available for review here.


Further reading

Building Safety Hub on ES webpage

A link to the Government’s consultation is available here, which in particular contains a useful diagram showing the proposed new building control process for creating higher-risk buildings, as set out below:


Source: Department for Levelling Up, Housing & Communities, Open Consultation: Consultation on implementing the new building control regime for higher irks buildings and wider changes to the building regulations for all buildings, published 20 July 2022 (available in full here).