The Building Safety Act 2022 (BSA) has introduced a more stringent regulatory regime for the design and construction of higher-risk buildings (HRBs) overseen by the Building Safety Regulator (BSR).
As we reported in our previous article on the new regulations implementing the building control regime, this new regime came into force on 1 October 2023. On the same date, new dutyholder and competence requirements also came into force – these apply not just to HRBs but to all "building work", i.e. any project that requires building regulations approval, with only limited exceptions.
Both regimes are subject to complex transitional provisions which allow eligible projects to stay under the old rules. However, on 6 April 2024, the transitional periods will end, and the new regimes will be fully in force.
Further changes are also on the horizon: the role of "approved inspector" is due to be abolished and replaced by "registered building control approvers" and "registered building inspectors" from 6 April 2024.
Whilst many inspectors in local authorities and approved inspectors are expected to transition to the role of "registered building inspector", concerns have been expressed that not enough professionals will have completed the registration process by the deadline.
Following recent calls from the head of Local Authority Building Control (LABC) for a six-month extension, the Welsh Government has extended the deadline for building control professionals in Wales to complete their accreditation by six months. Hot off the press is an announcement by the BSR of a competence assessment extension period of 13 weeks from 6 April to 6 July 2024, to enable building control professionals in England who meet specific criteria to continue to operate. However, this only applies to building control professionals who meet the set criteria – and it applies only to individual building inspectors, not the registration of organisations as registered building control approvers. We examine these key changes below.
Key changes on 6 April 2024
HRB building control
The new, more stringent building control regime which came into force on 1 October 2023 governs the design and construction of HRBs. By way of reminder, during the design and construction phase, the term HRB refers to a building that is at least 18m in height or has at least seven storeys and contains at least two residential units, or is a care home / hospital.
As noted above, not all live HRB projects are caught by the new regime. There are detailed transitional provisions under which – depending on the particular circumstances – a modified version of the regime applies.
The BSR has recently issued guidance to developers on the required actions they need to take now, in order to ensure they benefit from the transitional arrangements.
Broadly speaking, in order for a HRB to benefit from the transitional arrangements and remain under the existing building control process (rather than being transferred to the remit of the BSR), the key requirements are that:
- an initial notice was given and accepted, or full plans deposited with the local authority before 1 October 2023;
- works are "sufficiently progressed" by 6 April 2024 (what this means differs depending on whether the works are new build or works to an existing building/change of use);
- before 6 April a notice has been given to the local authority (and the local authority has received the notice) confirming that the works are sufficiently progressed; and
- where the initial notice was given by an approved inspector, that approved inspector has become a "registered building control approver" before 6 April 2024 (further details on this below).
For those projects that were not subject to a notice of "sufficient progression" by 6 March this year, guidance issued by the Department for Levelling Up, Housing and Communities (DLUHC) envisages engagement between the local authority, the person carrying out the work and the BSR in order to facilitate transition to the BSR (assuming the notice is not then given by 6 April). Following 6 April 2024, the guidance refers to a four-week period for the client of the in-scope building work to provide a notice to the BSR containing "all relevant information" about the HRB work.
Dutyholder and competence regime
Since 1 October 2023, the dutyholder and competence regime has applied to all new "building work" (as defined in the Building Regulations) in England. This means any project that requires building regulations approval, with only limited exceptions for "exempt" work (as detailed at Regulation 9 and Schedule 2 of the Building Regulations) and minor works.
Whilst certain projects have been exempted from the requirements if they fall within the transitional provisions, these also come to an end on 6 April 2024. The new regime:
- creates roles for specified dutyholders during construction projects;
- sets out the duties that they must comply with;
- sets out the competence requirements for individuals and organisations who may hold those roles; and
- identifies an additional 'layer' of duties and roles that the dutyholders will have on any project involving HRB work.
The identity of appointed dutyholders (principal designers and principal contractors) also need to be notified to the local authority, and the client, principal designer and principal contractor will each be required to make certain "compliance declarations" at the completion of a project.
Building regulations and the switch to registered building control approvers (RBCAs)
The BSA has also implemented an overhaul of the building control profession. In particular, it transfers the functions of "approved inspectors" to "registered building control approvers" – with the relevant provisions due to come into force on 6 April 2024. Regulations which set out the procedures governing work supervised by registered building control approvers are also due to come into force on 6 April 2024.
As noted above, one of the requirements for a HRB to benefit from the transitional arrangements and remain under the existing building control process is that, where an initial notice was given by an approved inspector, that approved inspector has become a "registered building control approver" before 6 April 2024.
Whilst the BSR has responded to concerns that too few professionals will have completed the individual registration process by 6 April 2024 with an announcement, on 13 March 2024, of a competence assessment extension period of 13 weeks to 6 July 2024 (although registration by the deadline of 6 April is still required), this does not (at present) appear to make any change to the requirement for organisations to register as registered building control approvers.
Key takeaways
6 April 2024 will be a pivotal date in the overhaul of the building control regime.
Clients procuring new 'building work' which does not fall within the transitional arrangements outlined above will need to review their project arrangements and procurement processes to ensure that they are suitable to enable compliance under the new dutyholder regime.
Where this involves HRB work, then:
- the arrangements and processes need to take into account the additional scrutiny such projects are likely to be under and the requirement for those involved in the project to specifically be competent to carry out such work. This will include checking that they have appropriate and relevant previous experience;
- project arrangements and procurement processes will need to be amended to provide for various elements of the new regime, including Gateways 2 and 3, the 'Golden Thread', the new change control process, etc.
Following 6 April 2024, the operation of the new HRB building control regime, and in particular Gateway 2 – a 'hard stop' where construction cannot begin until BSR is satisfied that the design meets the functional requirements of the building regulations – will begin in earnest. A multi-disciplinary team including a registered building inspector and other specialist disciplines will be stood up to review each application. The BSR has indicated that the 12-week period for BSR's approval (8 weeks for works to existing HRBs) will be a period of collaboration and engagement between all parties involved. The industry will be watching closely to see how this functions in practice.
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