October 2023 marks the introduction of a number of important new requirements outlined in the Building Safety Act 2022 (BSA) for higher-risk buildings.
Introduced following the Grenfell Tower tragedy, the BSA intends to improve the design, construction and management of higher-risk buildings and ensure “residents have a stronger voice in the system”. These new, legislative changes are the next, crucial step in ensuring those responsible for the safety of higher-risk buildings are consistent and effective in their management of risks and ensuring the safety of residents and members of the public living and working in or around higher-risk buildings.
In England and Wales, a higher-risk building is any structure that:
- Has at least two residential units or
- Are hospitals or care homes (during design and construction only), and
- Stands at either a minimum height of 18 meters or seven storeys.
The primary purpose of the newly created Building Safety Regulator (BSR) is to implement, support and enforce the “new, more stringent” regulatory regime introduced under the BSA. With its own powers and strategic programme, the BSR will be responsible for regulating building standards throughout the lifecycle of a higher-risk building, including during the design, construction, management or any other major refurbishment works.
The BSR’s core functions are:
- Implementing the new, more stringent regulatory regime for buildings which meet the higher-risk building definition in the BSA
- Overseeing the safety and standards of all buildings, and
- Assisting and encouraging competence among the built environment industry and the building control profession.
Registration, Golden Thread and Building Assessment Certificates
The deadline for Principal Accountable Persons (i.e. those responsible for the structure and exterior of higher-risk buildings) to register occupied higher-risk buildings passed on 1 October 2023. Failure to appropriately register, or to allow occupation of un-registered buildings, is a criminal offence that could result in a fine, imprisonment or both.
Principal Accountable Persons must now, as soon as possible, prepare a safety case report which identifies the building’s safety risks (spread of fire or structural failure) and explains how the risks are being managed. This must be updated when improvement work is carried out to manage building safety risks or work on the building affects building safety risks.
The BSR will be carrying out checks to make sure that the people who are responsible for occupied high-rise residential buildings are managing building safety risks, complying with their duties under the new legislation, and keeping residents safe. This will be done through the Building Assessment Certificate process where the Principal Accountable Person must apply to the BSR for an assessment certificate, when directed by the BSR to do so. The BSR have said it is likely to take five years for the assessment of all current occupied higher-risk buildings to be completed.
The people responsible for a building must put in place and maintain a golden thread of information. This must include all relevant information about how a building is constructed (i.e. the information and documents produced for registration and certification, safety case, mandatory occurrence reporting and resident engagement.
Changes to building control
From 1 October 2023, the BSR will automatically assume the role of building control authority for all higher-risk buildings and developers will no longer have the option to choose who they use as their building control body. This means that Local Authorities and approved inspectors will no longer be able to supervise higher-risk building works.
The BSR will continue to work closely with Local Authorities and fire and rescue services to ensure the correct specialists and regulators are involved when making decisions.
Local Authorities will remain the building control body for other, non-higher-risk buildings.
Changes to the Building Control Approval process
A new process for gaining building control approval for work to higher risk buildings also came into force on 1 October 2023. The aim is that the process will allow the BSR to regularly assess whether duty holders are continuing to properly take account of building safety measures and that they are appropriately meeting all regulations throughout the design and construction process.
Before any building work is commenced on new higher-risk buildings, developers must submit design applications to the BSR for approval. Applications must demonstrate how the proposed design will meet building regulations, manage change control and assist duty holders in meeting their legal requirements.
Until approved, no work can commence. The BSR may require design changes before the application can be approved. This is known as Gateway 2 approval.
Once an application has been approved, developers and the BSR have continuing obligations (“decision points”) including:
- Site inspections
- Reporting requirements
- Management of change
- Flagging and storing the “golden thread” of information about the building.
Once construction is completed and before occupation is permitted, an application must be made to the BSR for a completion certificate (known as Gateway 3) and, in addition, the building must be registered with the BSR. Applications for a completion certificate must include plans and documents that reflect the ‘as-built’ building demonstrating how the building work complies with building regulations requirements and provides assurance that buildings are safe to occupy.
These decision points are stop / go and must therefore be passed before developers can proceed to the next stage. This will however ultimately lead to delays and raise questions such as who will take on the risk and responsibility for the building whilst BSR approval is pending.
New duties for duty holders under CDM
From 1 October 2023, existing duty holders under the Construction (Design and Management) Regulations 2015, namely clients, designers, principal designers, contractors and principal contractors, will have additional duties to plan, manage and monitor their activities in relation to building regulations. These duties apply to all building work, not just higher-risk buildings.
The duty holders will also keep their existing duties, including co-operating and co-ordinating with other duty holders; communicating and sharing information; and ensuring they appoint people with the right skills, knowledge, experience and behaviours for the work they are required to do.
Duty holders may be required to sign off that a project complies with the Building Regulations. The client must ensure that other duty holder provide it will the information it needs to include in the Golden Thread. Failure to comply with these duties or to comply with the Building Regulations will be a criminal offence.
BSR fee recovery
The BSR has powers to recover charges in connection with the performance of relevant, chargeable functions. The full scheme is available on the HSE website.
In summary, chargeable functions include:
- Determining applications
- Notification and review
- Investigating, inspecting, monitoring and testing
- Conducting appeals
There is a three-stage appeal process for those who wish to challenge the charges against them.
Where any non-compliance is identified, the BSR has strong powers to take action which it has said it will start to use from 1 April 2024.
It is now a criminal offence to breach the Building Regulations, with penalties of two years imprisonment and/or an unlimited fine. The BSA will also extend criminal liability for an offence committed by a corporate body to its directors, officers or managers where the breach has been committed with their consent, connivance or neglect.
A joint statement issued in July 2023 by the Department for Levelling Up, Housing and Communities (DLUHC), BSR the Local Government Association and the National Fire Chiefs Council made it clear that building owners must undertake remediation work or face enforcement action.
In line with the BSA’s transparent approach, residents and other interest parties will be duly informed of any enforcement action taken against a duty holder.
Building Inspectors and Building Control Approved Register
A new registration system for building control approvers and registered building inspectors is being introduced to improve competence. This includes:
- A first time registration process for individuals required to register as building inspectors with the BSR
- Building inspectors are registered for four years (after which they will need to re-register)
- Registered building inspectors are required to comply with requirements set out by the BSR, including the Code of Conduct and the Building Inspectors Competency Framework.
From 1 October 2023 there will be a transitional period that will afford approved inspectors time to register as registered building control approvers.
Testing and Sampling
Section 33 of the Building Act 1984 will come into force in England only and gives building control authorities the ability to sample and test work (or require other parties to do so) to assess whether works (or proposed works) comply with Building Regulations. This testing includes the soil and subsoil of any site and the testing of any materials or component parts that have been, or are intended to be, used in the construction and development of a building. It is likely that the BSR will use this power where it hasn’t otherwise been satisfied that a building is safe. The BSR will be able to take action to force remedial works where it considers them necessary.
Fire Safety Changes
Section 156 of the BSA which also came into force on 1 October 2023 and which amends the Regulatory Reform (Fire Safety) Order 2005 is the next step in implementing the Home Office’s fire safety reform programme. These changes apply to all buildings, including commercial buildings (unlike most of the BSA) and the common parts of residential buildings. The duties fall onto the Responsible Person, which can be a different party to the Principal Accountable Person / Accountable Persons under the BSA.
Key changes include:
- Enhanced cooperation and coordination between Responsible Persons and Accountable People: there is a clear recognition of the need for improved cooperation and coordination between individuals or entities responsible for maintaining fire safety in a building themselves and those responsible for repairs and maintenance. This is especially crucial in higher-risk buildings where effective fire safety measures are complex.
- Documenting and recording fire safety information: all findings from fire risk assessments, regardless of the size or purpose of the premises, must be recorded. Previously it had only been necessary to record significant findings in buildings that had five or more employees, a licence in place and an alterations notice served on it. This step-change will ensure that a continuous record is kept throughout the building’s lifetime and will ensure that seemingly “unimportant” information is not overlooked.
- Sharing fire safety information: residents must be provided with “relevant fire safety matters”. This includes instructions on how to report a fire, reminders of evacuation strategies, any risks identified in the fire risk assessment, preventative and protective measures and the names and UK addresses of all Responsible persons. In higher-risk buildings, where evacuation plans and procedures may be complex and differ between residents, it is essential that residents are kept well-informed and are appropriately prepared.
- Enforcement: it is now easier for enforcement authorities to act against any non-compliance, for example where someone fails to comply (without reasonable excuse) with specific requirements imposed by an inspector. Some penalties have also had the maximum limit removed, meaning they become unlimited fines.
It is important that those responsible for all buildings are aware of these changes and their duties for ensuring buildings are safe.
If you have any questions on the implementation of the Building Safety Act, please contact Louise Mansfield.
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Article written by Alice Scadden and Louise Mansfield