The government has published a consultation on implementing the new building control regime for higher-risk buildings under Part 3 of the Building Safety Act 2022.

The consultation predominantly focuses on the changes that will be made to the building regulations to implement the new building safety reforms. It contains valuable detail on how the government proposes to implement the provisions relating to the design and construction of higher-risk buildings, as well as measures that will impact all building work.

The consultation gives the industry an important opportunity to comment and potentially influence the proposed regime. The length of the detailed consultation reflects the complexity of the proposals to implement the building safety reforms. We highlight some of the key proposals below.

What is a higher-risk building?

A higher-risk building is defined in the Building Safety Act 2022 (for the purposes of Part 3) as a building that is at least 18 metres in height or has at least seven storeys and is of a description specified in regulations. The government is also currently consulting on which buildings are included and excluded in the new regime and on the definitions of these buildings.

Dutyholders requirements

The dutyholders will be the client, Principal Designer, designers, Principal Contractor and contractors and the requirements will apply to any work or matter to which the Building Regulation 2010 are applicable. We discussed the dutyholder regime in a recent article.

Some of the key points of the consultation include:

• Who should be appointed? The roles are modelled on those set out in the Construction (Design and Management) Regulations 2015. However, in practice, the roles are very different with the CDM Regulations concerned with meeting health and safety requirements, while the new dutyholders regime is aimed at ensuring the work undertaken meets the building regulations.
  
  The consultation recognises that the same person can fulfil both roles, but only ‘if competent to do so’. These roles may need to be fulfilled by separate individuals or organisations given the differing statutory requirements and competencies required.
• Competence: Dutyholders must be competent and where organisations are appointed as Principal Designer or Principal Contractor, the consultation proposes that the organisation takes ‘reasonable steps to ensure that the individual/s designated, to manage the functions of the Principal Designer or Principal Contractor for that specific project have the relevant competence to do so’.
  
  Consequently, dutyholders and those appointing them will need to consider how this competence is established and demonstrated, while arranging to monitor competence to ensure it is maintained and keeping records of this. The consultation proposes that the dutyholders will be subject to notification requirements under the building regulations if they cease to be competent.
• How to demonstrate competence? The consultation suggests, ‘As a minimum, those carrying out work will be expected to meet the standards set by their sector, for example, relevant training and qualifications recognised by accredited institutions, membership of an established trade or professional body, or relevant experience of the type of work they will undertake.’ The British Standards Institute is developing competence requirements for the dutyholder roles - expected to be published in late July. The consultation also states that guidance on the competence requirements will be provided by the Building Safety Regulator (BSR).
• Dutyholder requirements for higher-risk buildings: The consultation proposes that before a person is appointed in relation to higher-risk building work, the dutyholder making the appointment should:
  • ask any person it appoints whether that person has a serious infraction (as defined); and
  • consider whether previous conduct of that person, in particular any serious infraction, might call into question their competence in relation to the work in question.
  
  Consideration will need to be given to the records that are kept to detail the steps taken to establish that the person appointed has the competence for the role and continued monitoring of such competence.
  
  The consultation proposes that this information will need to be provided as part of the client’s competence declaration, ‘stating that the client has taken all reasonable steps and is satisfied that the Principal Designer (or sole or lead designer) and the Principal Contractor (or sole contractor) meet the competence requirements by having the necessary skills, knowledge, experience and behaviours, including consideration of previous conduct’.

Gateway regime

Part 3 of the Act provides for a new ‘gateway’ regime to ensure building safety risks are considered at each stage of the design and construction of higher-risk buildings. The Building Safety Regulator will be the building control authority for higher-risk buildings in England. We discuss the gateway regime in our article here.

The consultation provides commentary on how the building control process for higher-risk buildings will operate in practice and the proposed timings. Key points of the proposed regime are as follows:

• Before building work can commence (gateway 2): An applicant must submit a building control approval application to the BSR. The BSR will determine the application within 12 weeks. The consultation states that the government is ‘keen that the new hard stop gateways process should not slow down build plans and so early dialogue between the BSR and the dutyholders is crucial’.
  
  It recommends that dutyholders give the BSR two weeks advance notice before submitting the application to ‘ensure that the Building Safety Regulator is expecting the application and is ready to start work on it the moment it is submitted’. Perhaps this is indicative of the government recognising that the BSR may find this timescale challenging to meet depending on the volume of applications.
• During the construction phase: For major changes to the building control approval, the applicant must submit a change control application. The BSR will have six weeks to determine the application and the change cannot be made without BSR approval. For notifiable changes, the BSR has 10 working days to determine the application. Inspections can be carried out by the BSR at agreed stages and also without notice during the construction phase. These factors could all cause unexpected delays and additional cost on a project, the risk of which will need to be dealt with in the contract.
  
  When building work is complete (gateway 3): An applicant must apply to the BSR for a completion certificate. It will be a criminal offence to occupy a higher-risk building until a completion certificate has been granted for the building and the building has been registered. The consultation asks for views on when the work will be deemed completed for the purpose of making a completion certificate application and proposes “either after all notifiable work is completed or when all work including snagging is completed”. Clearly, having to wait to make an application following completion of snagging and then awaiting possibly 12 weeks for the BSR to decide could severely impact the date a building can be used and occupied and have financial implications for owners and investors.

Transitional provisions

With the new regime for higher-risk buildings expected to be implemented between April 2023 and October 2023, projects being planned now may be impacted by the new regime. The consultation has given some clarity on the government’s proposed transitional arrangements.

The current proposal is that developers will be able to continue work under their existing building control body - and therefore, not be subject to the new regime - if they:

• have submitted a building/initial notice or deposited plans by the day the new regime commences, and
• commenced work (as defined) on the individual building within six months - the transitional period - of this date.

However, these buildings would still be subject to the requirements under Part 4 of the Building Safety Act 2022 in relation to the in-occupation regime for higher-risk buildings.Therefore, the timing of projects should be carefully considered.

What next?

The consultation contains significant detail for the industry to digest and provides an important opportunity to comment and influence how these changes are implemented. It will close on 12 October 2022 and those wishing to respond can complete the online survey here.

It is important that the industry takes this opportunity to comment and influence the shape of these regulations since they will have a significant impact on future projects - the timing and process for the BSR’s approvals, affecting the start and completion of projects being a prime example.

When the consultation closes, the government will consider the comments before regulations are signed and laid before Parliament. The government is also consulting on the proposals for occupied higher-risk buildings under Part 4 of the Building Safety Act.