Application of the Building Safety Act 2022 to Higher Education

 

The Building Safety Act (BSA) received Royal assent on the 28 April 2022. It takes forward the Government’s commitment to fundamental reform of the building safety system by strengthening the whole regulatory system for building safety and ensuring there is greater accountability and responsibility for fire and structural safety issues throughout the lifecycle of buildings in scope of the new regime.

Many of the provisions of the BSA and secondary legislation are now in force. Many apply to “higher-risk buildings” both during the design and construction phases and during occupation but other parts apply to any “building work” covered by the Building Regulations 2010 to any building.

What is a higher-risk building?

For those in higher-education, higher-risk buildings are those that meet the following criteria:

1. They are at or above 18m high or 7 storeys (the height criteria)
2. They contain at least two residential units (specifically including student accommodation) (the use criteria).

Where there are multiple buildings which are connected, before applying the criteria above, it is important to determine whether all the connected buildings have to be considered as one or whether any can be split into independent sections and considered separately. This assessment is important as it will impact on whether a building is a higher-risk building or not.

Government guidance on identifying higher-risk buildings should be considered. This also provides guidance on what a residential unit is and how height and storeys should be measured.

What work do the new requirements apply to?

The Building Regulations and the new requirements inserted into them by the Building Safety Act 2022 must be complied with when undertaking “building work”. This is defined in Regulation 3 of the Building Regulations 2010. It generally includes building new buildings and parts of buildings, making buildings bigger, altering buildings and changing what they are used for. It also covers installing a ‘controlled service’ (such as a boiler) or a ‘controlled fitting’ (such as a replacement window). ‘Renovation of thermal elements’ (such as roofs or external walls) is also building work. Some works are exempt from the whole of the regulations, others are only exempt from certain aspects. Other work, known as scheme work, can be self-certified by tradespeople / installers registered with a competent person scheme.

What are the new requirements that apply to ALL building work?

The Building Safety Act inserts Part 2A into the Building Regulations 2010 and introduces two key new requirements that apply to all building work, not just building work involving higher-risk buildings.

Duty holder roles

Existing duty holders under the Construction (Design and Management) Regulations 2015 who commission, design and undertake building work will have new responsibilities for ensuring that buildings are safe and compliant with the relevant regulations. This includes clients, designers, principal designers, contractors and principal contractors.

At a high level their new duties will be to plan, manage and monitor their activities, and to work together, to ensure that all building work is carried out in compliance with Building Regulations. Further details of the duties of each party are set out in Part 2A of the Building Regulations 2010. Clients should ensure that they have management arrangements in place to plan, manage and monitor any building works.

For work to a higher-risk building, the Gateway 2 application (see below) must include confirmation of who has been appointed as the Principal Designer and Principal Contractor. For other non HRB work, it should be noted that if a client fails to appoint a principal contractor or principal designer, the client will automatically take on the duties of those other roles.

When appointing a new Principal Designer, the Employer should engage them under a separate appointment which allows for novation in the event that the BSA Principal Designer is novated to the Contractor upon entering the building contract, in the event the Contractor agrees to undertake the new BSA Principal Designer role.

Competence

Any person carrying out any building work or any design work must have, where the person is an individual, the skills, knowledge, experience and behaviours necessary and where the person is not an individual, the organisational capability, to ensure that building work meets all relevant requirements and to be able to fulfil their duties under the Building Regulations 2010.

Anyone appointing a third party to complete design or building work, must take all reasonable steps to ensure that the party they are appointing have this required competence.

The Employer should draft a competency statement into its new BSA Principal Designer Appointment.

The Employer should draft a competency statement into its Contract with the Contractor, where the Contractor agrees to take on the role of the BSA Principal Contractor.

What are the new requirements for building work to higher-risk buildings?

Building work has to meet the functional requirements contained in Parts A - S of the Building Regulations 2010. Whilst these are amended from time to time, they are not retrospective and on the whole, these standards have not recently materially changed. What has changed however are the requirements to ensure and evidence compliance and the procedure for obtaining building control sign off.

The Building Safety Regulator ("BSR")

From 1 October 2023, the BSR is the building control body for all higher-risk buildings. Submissions for building control approval must now be sent to the BSR and work cannot commence until approval has been given (see Gateway 2 below). It is no longer possible to choose to use local authority building control or approved inspectors if the work is to a higher-risk building.

The Gateway Regime for building control approval

There is now a three-stage gateway regime in place for obtaining planning and building regulation approval for “building work” (unless scheme work or exempt) for higher-risk buildings. Gateway 1 is about obtaining planning permission and applies to all applications made after 1 August 2021. Gateways 2 and 3 relate to the Building Regulations and came into force on 1 October 2023.

• Gateway 1: Planning. A fire statement must be submitted setting out fire safety considerations specific to the development with a relevant application for planning permission for development which involves one or more relevant buildings. The planning authority must also consult the Health and Safety Executive as a statutory consultee for relevant planning applications
• Gateway 2: Pre-Construction Stage: Building Control Application. This replaces the building control deposit of plans stage. A building control application must be made to the BSR which includes a declaration that competence requirements have been met and a compliance statement setting out how proposed work meets the building regulations. The bulk of this submission will be drawings but proposals must also be sent to cover, amongst other things, how the work will be controlled to ensure building regulations compliance and how change will be managed. Construction cannot commence until approval is obtained from the BSR.
• Gateway 3: Post-Construction Stage: Application for a Completion Certificate. This must include various documentation to evidence that what was built reflects the approved plans and that the requirements of the Building Regulations have been met. It must also include statements from the client, principal contractor and principal designer (explained further below) that the works complied with the Building Regulations. If the work is to a higher-risk building that is a new build (i.e. not work to an existing HRB) and contains residential units, it can not be occupied until a completion certificate has been issued.

The requirements of Gateways 2 and 3 could result in some delay to projects. At Gateway 2, the BSR has 12 weeks to decide the application for new buildings and 8 weeks if the work is to an existing HRB. The BSR has 8 weeks for major change applications. Gateway 3 approval may take up to 8 weeks. These timescales can be longer if agreed. It is therefore important that all applications are submitted as far in advance as possible and that they are comprehensive so that the BSR doesn’t have to request further information to be submitted.

It is possible to apply for building control approval at Gateway 2 in stages for one higher-risk building, but only where it is not viable to provide detailed plans for the whole building or development. Partial completion certificates at Gateway 3 are also possible.

Whilst construction is in progress, the BSR will conduct site inspections and must be notified of any major or notifiable changes.

Golden Thread

The Golden Thread is a concept around the electronic storage of information about a higher-risk building in order to ensure that everyone involved in building safety management, whether directly or indirectly, has access to key details that could help identify, assess and mitigate risks.

Information must be obtained and added to this Golden Thread during any building work to new or existing higher-risk buildings, as well as throughout the lifecycle of the building. 

The information required for the Golden Thread is set out in The Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2024.

The Employer should seek to update its Contract with the Contractor to include all of the new BSA and Dutyholder Regulations.  It will need to clearly set out the Contractor’s obligations and liabilities in respect of its duties under the new legislation.

Requirement to register higher-risk buildings with the Building safety Regulator

Part 4 of the BSA provides that all occupied Higher-Risk Buildings should have been registered with the new Building Safety Regulator by 1 October 2023, or for new buildings completed after this date, after a completion certificate has been issued and before occupation. 

Buildings need to be registered by the Principal Accountable Person (PAP). Despite the word “person” in this phrase, the PAP is usually the organisation (not an individual) that is responsible for the structure and exterior of a higher-risk building. It is an offence for the PAP to allow occupation of a HRB that is not registered.

Buildings may also have other Accountable Persons (AP). An AP is anyone who owns or has a legal obligation to repair any common parts of the building. If there are multiple APs for a building, they must work together and share safety information about the building.

APs are responsible for assessing and managing the risks posed to people in and about the building from structural failure or the spread of fire in the parts of the building they are responsible for.

To do this, APs must:

• put measures in place to prevent building safety risks happening and reduce the severity of any incident that does happen
• report certain fire and structural safety issues or incidents
• engage with residents about the building’s safety and carry out duties relating to the resident engagement strategy
• keep, update and provide information about the building for the building’s safety case
• transfer building safety information to any incoming AP
• notify the Building Safety Regulator if there’s a change to an AP

In addition to the above, the PAP must:

• put together a safety case for the building and prepare a safety case report
• notify the Building Safety Regulator about changes to the building’s safety risks in the safety case report
• operate a reporting system to record building safety issues and incidents
• operate a complaints system to investigate concerns about the building’s safety risks or the performance of an AP
• display required information and documentation clearly within the building
• prepare and update a resident engagement strategy so that residents and owners can participate in making building safety decisions
• apply for a building assessment certificate when directed by the Building Safety Regulator

If you would like more information about this topic, or assistance with auditing your estates and identifying whether any additional actions need to be taken to improve the safety of buildings, please contact Niamh Batterton or Louise Mansfield. Learn more about our Higher Education Team and our Health and Safety Team.