Building Safety Act 2022 Update: secondary legislation for new building control framework

On 17 August 2023 the Department for Levelling Up, Housing and Communities published a suite of secondary legislation which fleshes out the technical details that underpin the new safety regime for the design and construction of higher-risk buildings (“HRB”). The new regulations will come into force on 1st October 2023. This article therefore seeks to provide a short summary of the key changes that are likely to impact those in the construction sector. The new regulations include:

  1. The Building Regulations etc. (Amendment) (England) Regulations 2023.

This regulation amends the Building Regulations 2010 and applies to all buildings as opposed to HRB’s only. Perhaps most importantly it introduces new dutyholder roles, duties and competence requirements which includes the client, principal designer and principal contractor. These roles and competencies are referred to at Regulation 6 and it is important that those within the construction industry familiarise themselves with this regulation to understand what is expected of them.

  1. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023.

This regulation provides procedural building regulation requirements for HRB’s and provides details in relation to:

  • the procedure for “Gateway 2” applications which requires the submission of a building control approval application to the Building Safety Regulator (“BSR”) before the commencement of building works. Approval from the BSR must be obtained before the works start;
  • details on what must be included within the building control approval application referred to in Regulation 4;
  • the requirement for the creation and maintenance of a change control log by the principal contractor and what is to be included and requirements in relation to “major changes” and “notifiable changes”;
  • the arrangements and procedure for golden thread information and mandatory occurrence reporting system of the principal dutyholders to the BSR; an
  • the procedure and requirements for applying for a completion certificate (Gateway 3 application).

In depth guidance on the new regime in relation to Gateway 2 and 3 has been issued by HSE and can be viewed here.

  1. The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

These regulations amend the Building (Approved Inspectors etc.) Regulations 2010 in a way that supports the HRB control regime. For example, the regulator for any HRB will be the building control authority and approved inspectors will be replaced by registered building control approvers.

Clearly there is a lot to consider prior to the regulations coming into effect on 1 October 2023 and we would strongly advise those involved with HRB developments to familiarise themselves with the new regime. Parties will also need to consider whether there are any contractual implications arising from the secondary legislation that need to be addressed. It is worth noting that there will be transitional arrangements that allow HRB works to continue under the current framework if certain conditions are met. For example, if an initial notice has been given to a local authority prior to the new regime coming into force and the works have “sufficiently” progressed before 6th April 2024 then it may be eligible to continue under the current framework.

For advice on this or any other construction and engineering related issues or support, please contact our team and we will be happy to help.

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