Shoosmiths’ specialist construction and regulatory teams have provided a detailed response to the government’s consultation on implementing the new building control regime for higher-risk buildings under Part 3 of the Building Safety Act 2022.

The firm’s response draws on its expertise working with key stakeholders in the construction industry and first-hand experience of the issues that are relevant to the proposed regulations.

The consultation 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 firm’s construction experts recently analysed the key proposals contained in the consultation.

This latest response involved specialist input from Rick Atha (partner), Ian Hardman (partner) and Amber Wright (professional support lawyer) from Shoosmiths’ construction and engineering team, alongside Hayley Saunders (partner) and Hannah Howard (senior associate) in its regulatory team.

The importance of the Building Safety Act 2022 cannot be overstated. Its main objective is improving the safety of those who occupy all forms of buildings including in the residential sector. Shoosmiths’ response seeks to ensure that the secondary legislation required to implement many of the provisions contains the necessary detail, clarity and flexibility to operate successfully in the industry.

Shoosmiths’ response

• Greater clarity and guidance are needed in respect of certain duties of dutyholders including the extent to which the Client’s duties can be delegated to others.
• Query whether the dutyholder regime ought to require absolute obligations and, if so, whether this may fall outside the scope of many professional indemnity insurance policies. One recommendation could be to adopt an approach that is consistent with the Construction (Design and Management) Regulations 2015.
• The timing of the appointment of the Principal Contractor needs further consideration. The current proposal is that both the Principal Designer and the Principal Contractor must be appointed before the building control approval application. A phased approach - still subject to the proposed ‘hard stop’ at Gateway 2 - would better reflect the wide range of procurement options used by the industry and to allow de-risking of the design approval
• Important to highlight the potential impact on project timescales of the proposed 12-week period for considering the ‘hard stops’ at Gateway 1 (building control approval application) and Gateway 2 (completion certificate application). Greater flexibility in the proposed processes should be considered.
• While it is crucial to ensure a building is safe before it is occupied, requiring the resolution of snagging before a completion certificate application can be made would significantly delay the commercial operation of many developments. One proposal could be to not include completion of snagging in the definition of completion for the purposes of applying for a completion certificate and that non-safety related finishing and other works could be excluded.
• Further clarity is needed with regard to what information should be stored on the golden thread to ensure what is stored is proportionate to achieve its purpose.

The consultation has now closed, and the government is considering the responses received.