The legal view of the building safety regime

Simon Lewis and Michelle Essen at law firm Womble Bond Dickinson say the construction industry should brace itself for major changes this year as the new building safety regime comes into play

The Building Safety Act 2022 (England) (BSA) has laid the groundwork, with a number of government consultations taking place late last year – and this year we will see the impact of that as the changes outlined in the BSA filter their way through to the industry with increasing speed. Some of those changes will need secondary legislation, but we have already started to see this trickling through.

Building safety has been on the industry’s radar for a few years now, but with the rafts of information being published about it – and the discussions about it having developed and evolved over that time – stakeholders in the industry are not always fully up to speed with what they need to know. So what do you need to watch out for this year?

The definition of higher-risk buildings

Higher-risk buildings (HRBs) will be particularly impacted by building safety regime changes (although the changes will also affect non-HRBs to a lesser extent). Broadly, HRBs are buildings of at least 18m in height or at least seven storeys, containing at least two residential units. However, in 2022 the government consulted on proposals to exclude certain buildings from being HRBs.

Hitting the ground running in 2023, draft secondary legislation in the form of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (bit.ly/Higher_risk_buildings) has now been published. These Regulations will still need to be considered and ratified by Parliament, but it seems unlikely that they will be altered in any material way before coming into force, which is expected to be at the beginning of April.

As such, you should consider whether the current definition of HRBs impacts any of your properties or projects, and keep an eye out for the final form of legislation.

Gateways

One of the main changes proposed for HRBs was the introduction of ‘Gateways’ into the building approval process. Gateway 1 is already in place, occurring at the planning stage.

Late last year, the government consulted on its proposals for two further Gateways. This would affect both new and existing HRBs with the process for each being different, but by way of example, the process for a new HRB as set out in the consultation paper would be:

• Gateway 2 (pre-construction) – under the proposals, the applicant must submit a building control approval application to the Building Safety Regulator (BSR) before construction. This replaces the current ‘deposit of full plans’ stage. The BSR would determine the application within 12 weeks (or longer if agreed). In the meantime, building work must not start without this BSR approval; and

• Gateway 3 (post-construction) – it is proposed that the applicant would submit a completion certificate application to the BSR and hand the Golden Thread information to the accountable person (who assesses and manages building safety risks post-construction). The BSR would determine the application within 12 weeks (or longer if agreed). In the meantime, a new residential unit in an HRB cannot be occupied before the BSR completion certificate is granted.

The outcome of this consultation is awaited, but there are industry concerns about the impact of these Gateways on project timescales and budgets, particularly if buildings cannot be occupied for up to 12 weeks after completion, and the further impact on funding and insurance in this situation.

In the meantime, consider how this would impact your business, projects and budgets. Start having early conversations with other project stakeholders you are working with about how you might mitigate these risks in future projects, subject to the outcome of the consultation.

Duty holders

The BSA introduces ‘duty holders’ and again a government consultation last year provided more detailed proposals on this. In brief, under these proposals, for both HRBs and non-HRBs, duty holders would be the client, a principal designer, designers, a principal contractor and contractors. This is similar to, but not necessarily the same, as under the CDM Regulations; the duty holders’ focus here would be on building regulations compliance rather than health and safety under the CDM Regulations. There would be duties for all duty holders to comply with, such as managing and monitoring work, co-operating and ensuring competence, as well as separate duties for various duty holders depending on their role, for example whether they are the client or a designer.

Duty holders for HRBs would have extra obligations. For example, the client must appoint the principal designer and principal contractor early to help it make a Gateway 2 application. These duty holders will also have various obligations relating to the Golden Thread. Again, the outcome of this consultation is awaited. Within your own organisation, it’s worth considering who the relevant duty holder should be, whether this overlaps with the CDM role or would be kept separate, and what training and insurance is available.

Golden Thread

After the Grenfell fire, the Hackitt review into the tragedy identified the need for a Golden Thread of information: “Both the information that allows you to understand a building and the steps needed to keep both the building and people safe, now and in the future.” Essentially, it is about retaining relevant, up-to-date information about HRBs, which evidences compliance with building regulations – and also about reviewing that information regularly to ensure it remains relevant and up-to-date during the life-cycle of the HRB. The detail on what information and which documents should be included in the Golden Thread is still awaited, although a government consultation in late 2022 provided some insight.

Further reading

• Five things you need to know right now about the Building Safety Act: bit.ly/WBD_BSA

• For more information on the Gateways and duty holders, visit: bit.ly/WBD_changes

• The Golden Thread During Design and Construction: bit.ly/WBD_goldenthread

• Fire Safety Duties for Occupied Buildings: bit.ly/WBD_occupied

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For occupied buildings

From January, we saw new duties around displaying fire safety information, providing specific information to residents about fire doors, wayfinding signage, retaining plans and information in a secure information box, and regularly inspecting fire-fighting equipment under the Fire Safety (England) Regulations 2022.

For relevant buildings, under the BSA changes, we expect to see duties placed upon the ‘Responsible Person’ (generally the employer, building owner/occupier or managing agent, in respect of areas of the building within their control) and the ‘Accountable Person’ (broadly, the person who either owns or has responsibility for the structure and exterior of the building, or the communal areas.) It’s worth keeping an eye on the Building Safety Act’s progress throughout the year at the Womble Bond Dickinson building safety hub.

Visit the Womble Bond Dickinson building safety hub at bit.ly/Womble_Bond_Dickinson

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