David Savage is a partner and cco-director of instruction and infrastructure at Charles Russell Speechlys
The 1St October is a big day for the construction industry.
This date marks the new Building Control regime for Higher Risk Buildings (HRBs) and the deadline for applying to register any qualifying HRB that is used for residential purposes, including as part of a mixed use regime.
Under the new building control regime, those carrying out work on HRBs (both new and existing) must apply for building control approval from the Building Safety Regulator (BSR).
“There is a government flow chart that summarizes the various transition arrangements, but it generally begs more of the question, ‘Wasn’t there an easier way?’
For building control purposes, an HRB is at least 18 meters high or seven storeys, with two or more residential units and includes hospitals and nursing homes. The description is different from that of the “in occupation” regime.
To strengthen regulatory oversight, a series of three gateways have been introduced for HRBs, at the planning stage (gateway 1), before works start (gateway 2) and at completion/pre-occupancy (gateway 3).
Gateway 2 stipulates that before construction work begins, an applicant must submit an application for building control approval to the BSR. Gateway 3 states that prior to occupation, you will need to submit an application for a certificate of completion to the BSR. Your building cannot be occupied without it.
In addition, between gateways 2 and 3, there will be a change control process, a mandatory incident reporting system, a collection of basic information and the continuous assessment of the competence of those responsible throughout the process Rigorous accountability of those responsible is being incorporated into the new system.
There are many changes afoot, and while many will have diligently prepared for these changes, it is inevitable that some will ask, “Are we ready?”.
Preparing for the changes
From October 1, 2023, six months of rather complicated transitional regimes will apply. They start simply, with the notice or initial plans to be lodged by 1 October 2023 and works to be “sufficiently advanced” by 6 April 2024 .
But this is where it all starts to get complicated, with the transition agreements detailing eight more scenarios and different outcomes. There is a government flowchart that summarizes the various transition arrangements, but it generally begs the question: “Wasn’t there an easier way?”
The good news is that we have seen a modest streamlining of the documents required to accompany Gateway 2 and Gateway 3 applications. It is also encouraging that the government has listened to industry and that the 12 weeks originally planned to give the BSR to process a Gateway 3 request is being reduced to eight weeks (at least in theory).
Gateway 2 and 3 applications will also be subject to a validation process, to avoid applicants waiting for the full application review period before their applications are rejected due to lack of accompanying documents, for example.
In moving forward with the launch date of 1 October 2023, the government has taken the view that the industry has now had sufficient visibility into the new regime since the Building Safety Act 2022 was enacted But it remains to be seen whether the industry is ready or not.
Challenges ahead
The large volume of information that the industry must assimilate will be a great challenge. To help, the BSR has published a short guidance note on the building control regime, but I have little doubt that the industry will take some time to catch up.
The result of the consultation on the new building control regime shows that the government has taken it on board some of industry concerns with the practical aspects of the new regime. But there are likely to be ongoing concerns about how workable the new regime will be with its timelines for BSR approvals and requirements to consult with legal consultees as appropriate.
Finally, in an interesting twist, the future of the Health and Safety Executive (HSE) as the home of the BSR itself appears uncertain. A late amendment to the Leveling and Regeneration Act introduced a new section giving powers to the Secretary of State to appoint a new body to replace the HSE as the BSR.
In this section, the Secretary of State would have a period of 24 months, counting from the day on which the final report of the Grenfell Tower Inquiry is presented to Parliament, to issue regulations in this regard (all and that this period could be extended). ).
For the sector, whether it is the HSE or another body, a key requirement will be for the regulator to have the appropriate resources to operate the entirety of the new building control regime, both within the applicable timescales and, ideally, in shorter periods.
