Amy Pairman is an associate and Eric Johnstone is a senior partner in the law firm Brodies
On August 17, the government released your answer in its 2022 consultation on the new building control regime for ‘high risk buildings’, as part of changes to the Building Safety Act. The government has also published, for the first time, the proposed detailed regulation that establishes this new regime, which must enter into force on October 1.
“The new approach is said to have emerged because of ‘cconcerns raised by the industry and the importance of applying a definition that is workable for developers’”
This new regime fundamentally modifies building control requirements in relation to the design and construction of new buildings and high-risk works to existing buildings (a high-risk building during construction is a building over 18 meters in height or seven stories with two residential units; or a hospital or nursing home).
A building that falls under this new regime will be subject to a series of robust ‘hard stops’, both before and after work starts (known as ‘Gateways’), as well as increased supervision regulations during the works.
The government has recognized that when the new regime comes into force there will be situations where work is already underway on a project (or due to start shortly), which will lead to difficult questions about which regime applies. This prompted the 2022 consultation to suggest there would be “transitional provisions”, which (if met) would allow work to continue on a high-risk building under the old regime.
The recent new regulations and the government’s response to the consultation confirm that the government will put these transitional arrangements in place, but with slight changes to what was proposed in the 2022 consultation.
Two conditions
Under the proposed Building Regulation (Higher risk building procedures) 2023, for the transitional provisions to be applied, two conditions must be met. If these conditions are met, the works will not be subject to the new high-risk building regime. The conditions are:
- Before 1 October 2023: Initial notice must have been given to a local authority (and not refused), or full plans must have been lodged with a local authority (and not refused ); i
- Before April 2024 (that is, within six months of the entry into force of the new regime): works for the creation of a new high-risk building must be ” sufficiently advanced”, or when it comes to works on an existing high-risk building, these works must have “begun”.
It is this second condition where the government has changed from what was proposed in 2022, as the previous proposal was a requirement to have “started work” within six months, the suggestion is that strict definitions would be put in place for ” start’ (both for high-risk new building creation works and existing works) to prevent developers from ‘gaming the system’. Now, for works to an existing one high risk building, all that is required is that the works have “begun”, without further definition. For works to create a new one high risk building“sufficiently advanced” is defined in the new regulations as “when the pouring of concrete has begun for (i) the permanent placement of the trench, pad or pool base, or (ii) the permanent piling of this building”. .
This new approach, and the distinction between new works and existing works high risk buildingsis said to have arisen because of “cconcerns raised by the sector and the importance of applying a definition that is viable for developers”.
Hidden requirements
While the government’s recent response to the 2022 consultation focuses on the above two holder conditions, there appear to be three very important additional requirements hidden in the fine print:
- Each individual building must meet both conditions. This means that in a multi-building project it is not enough that only one building in the project has its initial notice and has started work; each building must meet the conditions individually. This means that on projects with a rolling start, not all buildings will be “sufficiently advanced” by April 2024, meaning these buildings will move to the new regime.
- You must have an authorized registered inspector. Changes under the Building Safety Act mean that the building control profession will become a registered profession on 6 April 2024. In terms of transitional provisions, the government has said that this means that any authorized inspector overseeing the project must be registered by 6 April 2024 for the project to continue to benefit from transitional arrangements and remain under private sector construction control.
- It is necessary to notify that the works are “sufficiently advanced”. Not only must The work meets the definition of sufficiently advanced within six months, but the person carrying out the work must also notify the local authority at least five days after the time when the work is considered sufficiently advanced advanced and before April 6, 2024.
If all the requirements of the transitional provisions are met, the works will remain under the old regime. If they are not, the work will be transferred to the new Building Safety Regulator and will be subject to the new stricter regime, with likely secondary impacts on the time and cost of the project. It is therefore important that all parties understand the status of new projects and determine whether or not they meet the requirements of the transitional provision, or whether they will be subject to the new regime.
