Eric Johnstone is a senior associate and Amy Pairman is an associate at Brodies Law Firm
On October 1, 2023, the new provisions of the Building Safety Act of 2022 came into force that regulate works in high-risk buildings (HRB). These have fundamentally changed the building control process and will have important ramifications for those working in this sector.
“Most contractors working on a project will build the relevant approval periods into their schedules. But what if the BSR asks for more time?”
A key change is the introduction of gates two and three in place of the old building control regime. These walkways are hard-stopped in construction: until approval is given for walkway two, work cannot begin on site and until approval is given for access gate three, the building cannot be legally occupied.
These gateways have the potential to cause significant problems if not met, but what are the deadlines involved and how should you prepare?
What is an HRB?
It is useful to remind ourselves what an HRB actually is. For a building to be considered an HRB during the construction phase, it must be 18 meters high or have seven or more storeys, and contain two or more residential units, be a hospital or nursing home.
This means that not only traditional blocks of flats will be captured, but also mixed-use developments containing two or more floors, for example.
New HRBs
Access door two
Construction of an HRB project cannot begin until Building Safety Regulator (BSR) approval has been given at Gate Two. A detailed application must go to the BSR, after which it has a default period of 12 weeks to approve or reject the application. However, this 12-week period may be extended to “such longer period as may at any time be agreed in writing by the regulator and the applicant”.
This introduces a risk. If the BSR asks for more time, the applicant is in an unenviable position. If you decline the request, the request may be rejected. However, if you accept the request, the start of the project will be delayed.
Access door three
Passage of gateway three will follow a similar pattern. However, the approval period is eight weeks instead of 12, although this is still subject to the BSR’s ability to request an extension.
Works on existing HRBs
The same rules as above apply to works on an existing HRB, with the caveat that the period for BSR approval of the initial application is eight weeks, although again subject to the same possibility as the BSR asked for more time.
Changes
Changes have become part of the standard operating procedure for most projects. However, in an HRB, changes now can have a significant impact on the program. If a change is considered a ‘major change’ (a detailed but broad definition is given in the legislation as a change that alters the use, size or fire safety features of a project), the ‘approval of the BSR.
This time, the BSR has six weeks to respond, again subject to the possibility of extension. However, until the change is approved, work cannot go ahead. Depending on the stage at which the change is introduced, this could bring a project to a halt.
What can you do to prepare?
As a party carrying out work on such a project, as a first step you should check that the provisions of your contracts protect you. Some key aspects to consider are:
- Who takes responsibility if the BSR asks for an extension? Most contractors working on a project will incorporate the relevant approval periods into their schedules. But what if the BSR asks for more time? Who bears the risk will be a commercial decision in each situation, but the parties should ensure that this is taken into account at the contract stage.
- What happens if an application is rejected by the BSR? This is an issue the government is aware of. A validation process has been put in place so that when the BSR receives an application for the first time, it will be checked that it is valid and that all the necessary information is included. This should mean that any applications that are incomplete are identified early in the process, rather than waiting for the 12-week approval period. However, there may still be situations where the BSR considers that more information is needed and/or does not consider the application to comply with building regulations. The key question here will be who is responsible for the delay? A number of parties will feed into each application: clients, contractors and members of the design team. It seems unlikely that clients will bear the risk of failure on the part of the contractor’s team; therefore, contractors should ensure that there are adequate provisions in supply chain contracts to ensure that costs incurred are reduced.
- Who is responsible for major changes in the project? As noted above, major changes are significant alterations to the project and would often require an instruction from the client. However, contractors should be wary of accepting broad provisions that make them responsible for “legal approvals” should such changes be inadvertently detected.
The changes made by the law are still relatively new, and the market is still trying to reach a fixed position. This means that there is no standard wording, so each contract must be considered on a case-by-case basis. The parties will need to ensure that they fully understand and are comfortable with the allocation of risks for a project before work begins.
