The final elements of the new building safety regime introduced by the Building Safety Act 2022 ("BSA") came in to force on 1 October 2023 and the new regime is now live. While the core of the new regime is focused on improving building safety in the design, construction and occupation of higher-risk buildings (i.e. multi-unit residential buildings over 18 metres in height) ("HRBs"), aspects of the BSA are of wider application and this has a number of important implications for the whole of the construction industry in England.
The new regime is to be overseen by the Building Safety Regulator ("BSR"). As part of its remit the BSR is tasked with promoting competence across the construction industry and improving standards in the design and construction of new buildings (not just HRBs). To this end, the existing roles of “Client”, “Principal Designer” and “Principal Contractor" under the CDM Regulations 2015 have been expanded under the new regime to impose additional obligations on these duty holders to promote compliance with the Building Regulations in relation to all construction projects. These new obligations include:
- Client - the Client is under an obligation to ensure that suitable arrangements are in place to plan, manage and monitor the project and is required to ensure that it appoints the right people with the right competencies for the work. In addition, where there are multiple parties working on the project, the client is obliged to appoint a Principal Designer and Principal Contractor in respect of the works.
- Principal Designer - the Principal Designer is responsible for managing, coordinating and monitoring work during the design phase and must take all reasonable steps to ensure that the design work carried out complies with the relevant Building Regulations.
- Principal Contractor - the Principal Contractor is responsible for managing, coordinating and monitoring work during the construction phase and must take all reasonable steps to ensure that the building work carried out complies with the relevant Building Regulations.
The Client is obliged to maintain a written record of the steps it has taken to satisfy itself that the Principal Designer and the Principal Contractor are competent to fulfill their duties, and the BSR may request evidence from all three duty holders as to how their competence is established and maintained. Accordingly, it is vital that any party intending to take on the roles of Principal Designer and/or Principal Contractor can evidence their competence and organisational capability to carry out these roles and we recommend that any Principal Designer and Principal Contractor considers the competence frameworks set out in PAS 8671 and 8672.
Building Control Professionals
From 6 April 2024 the BSR will become the only Building Control body in relation to the development of HRBs. However, under the BSA, the wider building control industry will become a regulated profession and, from 6 April 2024, public and private building inspectors and building control approvers will need to be registered with the BSR in order to continue to practice.
In order to register with the BSR, building control professionals will need to satisfy various registration criteria (including competence, compliance with codes of conduct and insurance requirements) and thereafter their performance will be supervised by the BSR, with a range of sanctions (including fines, suspension and de-registration) for failure to comply with the new regime.
HRB Construction Regime
The BSA has introduced a new three stage (gateways) building safety regime, overseen by the BSR, governing the design and construction of all new HRBs. Failure to adhere to the new regime is likely to result in significant delays and/or increased costs in the development of an HRB and could ultimately result in the HRB not receiving a building control certificate meaning that the HRB cannot be deemed to be complete or occupied.
- Gateway One (Planning) - requires that the BSR is consulted on building safety issues in relation to any application for detailed planning permission for the development of an HRB and the submission of a fire safety strategy for BSR approval. Gateway One came into force on 1 August 2021 and data from the first 12 months of the operation of Gateway One indicates that 56% of fire safety strategies required amendment and re-submission resulting in costly redesigns and delay.
- Gateway Two (Design) - from 1 October 2023 the Client is required to submit an application to the BSR for building control approval. The design within the application will need to be sufficiently advanced to allow the BSR to assess the design strategies for the HRB and ensure that building safety risks “are not baked in" to the design. It is important to note that BSR approval is a "hard stop" in the development process and no permanent works can be undertaken until BSR approval is received. Again, failure to properly address building safety risks in the design of an HRB is likely to result in costly redesigns and delays to the project.
- Gateway Three (Construction) - on completion of an HRB, the Client is obliged to apply to the BSR for a Building Control completion certificate. The application will need to be supported by sufficient information to demonstrate that the completed building conforms to the approved design and satisfies the functional requirements of the Building Regulations. It is important to note that the completed HRB cannot legally be occupied before the issue of the completion certificate. As such, we anticipate that the provision of all information necessary to support the Building Control application (including the provision of the “golden thread” information) will become a condition precedent to the granting of practical completion under a building contract for the development of an HRB.
- Change Control - any “major change” to the design for an HRB following receipt of Building Control approval will require BSR approval before it can be implemented. As such it will be necessary for the Principal Designer and Principal Contractor to establish a detailed change control plan to ensure that there is a complete and accurate record of any changes to the design and to ensure that major changes are notified to the BSR for approval. The obligation to secure the BSR's approval of any major change in the design means that the Client should avoid significant design changes after receipt of Building Control approval in order to avoid costly delays in the development of an HRB.
HRB Occupation Regime
From 1 October 2023 the Principal Accountable Person for a new HRB is required to register the HRB with the BSR before the HRB can legally be occupied by residents. In addition to new HRBs, all existing HRBs had to be registered with the BSR before 1 October 2023 in order that the HRB can continue to be occupied. Failure to register the HRB with the BSR is an offence under the new building safety regime.
Following registration of an HRB with the BSR, the Principal Accountable Person is required to provide key building information to the BSR and apply for a Building Assessment Certificate, if directed to do so by the BSR. Thereafter, the Principal Accountable Person, together with any other Accountable Person for the HRB, is under a continuing duty to, amongst other things, manage and mitigate building safety risks at the HRB for the duration of its occupation.
Failure to comply with the new building safety regime is an offence which can be prosecuted by the BSR. The sanctions for a building safety related offences include unlimited fines and, for individuals, up to two years imprisonment.
Burges Salmon Comment
The BSA has introduced a comprehensive new regime intended to reduce building safety risks arising during the design, construction and occupation of HRBs in England and aims to drive improved standards across the construction industry.
Aside from risking the safety of the residents of new developments, failure to comply with the new regime is likely to result is costly redesigns and delays during the construction process and, in extreme cases, could mean that an HRB cannot legally be occupied resulting in significant losses (either in remediating building safety defects and/or loss of sales / rental income). Building safety failures could also have serious reputational issues for this concerned. It is therefore vital that everyone in the construction industry is familiar, and engages, with their duties and obligations under the new building safety regime.