New High Risk Buildings approval regime comes into force on 1 October 2023

The Building Safety Act 2022 currently provides for a significant overhaul of the regulatory framework in England  for the approval of higher-risk buildings, being buildings of at least 18 metres (7 storeys) which contain at least two residential units or are hospitals or care homes. In previous Law-Nows we considered draft regulations and a Government consultation. Final regulations have now been issued and are due to come into force on 1 October 2023. 

It had been anticipated for some time that a new regulatory framework would be introduced for higher-risk buildings including two new approval stages to be known as “Gateway 2” and “Gateway 3”.

As expected, new regulations have been issued which will come into force on 1 October 2023, although subject to the various transitional arrangements, and follow many of the proposals made by the Government in its consultation to which the Government has also responded.

We set out below some of the key points to note about some of the regulations and identify some which are not as many expected them to be given the previous draft regulations and Government consultation. Copies of our previous Law-Nows on this topic can be accessed here and here. For a more general overview of the Act, please see our earlier Law-Now here.

Among the regulations are The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (SI 2023/ 909) which specify the procedural requirements when a new higher-risk building is being designed and constructed or when building work is being carried out on an existing higher-risk building. Key points to note are -

• Gateway 2 and before starting work on site –
  • Before building work, or a stage of building work, can begin on a higher-risk building, an application must be submitted to, and approved by, the Building Safety Regulator (BSR). This introduces a new “hard stop” before relevant building work starts. Recent HSE guidance on the new gateways states that starting work is the undertaking of any element of permanent building work as described in the building control approval application. For example, the carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work.
  • The information required for this stage is prescribed and further guidance about how to make a building control approval application is likely.
  • As expected, the BSR, on receipt of a valid application, has 12 weeks (8 weeks for work to an existing higher-risk building) to notify the applicant and determine the application beginning with the date the application is received. The BSR must first confirm that the application is valid. A failure by the BSR to approve a valid application on time will not see the application automatically treated as approved. The applicant can apply to the Secretary of State to determine a valid building control approval application when the BSR fails to make a decision within the required time.
  • The client must give the BSR at least five working days’ notice before starting higher risk building work on site.
  • Specific information and documents must be kept as part of the golden thread of information before building work begins on a higher-risk building. This golden thread of information must be kept electronically and handed over to occupation phase dutyholders on completion. The digital nature of this facility is not prescribed so as to allow for innovation, but it must be kept up to date, be able to effectively deliver safe outcomes and must be transferrable. Use of BIM standards is encouraged and further guidance on golden thread requirements is expected.
• During construction -
  • The client must give the BSR another notice when the work has met the new definition of ‘commencement’ noted below.
  • Changes are controlled with some requiring BSR approval (BSR has 6 weeks to determine a valid change control application for “major changes”, as defined, and the work to implement the major change cannot start until approved).
• Gateway 3 and before occupying the building -
  • Before the building can be occupied, a further application must be submitted to, and approved by, the BSR. That approval will take the form of a completion certificate. The completion certificate is required for registration of a new higher-risk building and the building must be registered before it can be occupied.
  • The BSR, on receipt of a valid application, has 8 weeks to determine the application.  This period is contrary to the 12 weeks that many expected given the previous draft regulations and Government consultation. As with Gateway 2, a failure by the BSR to approve a valid application on time will not see the application automatically treated as approved and the applicant may apply to the Secretary of State for determination.
  • A Gateway 3 application can only be made once completion is achieved and full as-built plans and information, among other things, will need to be submitted. Completion seems to include completion of snagging work, as all applicable requirements of the building regulations must have been complied with before a completion certificate can be issued. However, the government has said that it intends to work with the BSR to consider how to provide clarity about snagging work.
  • As discussed in our earlier Law-Now, these requirements could have a significant impact on timings given that a further period is needed for the application to be determined and the building registered.
• Building work in existing higher-risk buildings follows different building control routes depending on the work that is being carried out.
• Transitional provisions apply in different circumstances. Broadly speaking, the various transitional provisions in respect of higher-risk buildings may apply where an initial notice describing the higher-risk building work has been given to a local authority and accepted before 1 October 2023 (or full plans describing such work have been deposited, and not rejected, with a local authority before 1 October 2023) and the works have been “sufficiently progressed”, depending in the type of building work, within 6 months.

As expected, where the applicant and BSR agree, the prescribed time periods for BSR decision making can be longer than specified. Indeed it is anticipated that for very complex projects it may be necessary for an extension of time for BSR approval to be agreed.

As we noted in our earlier Law-Now, if the BSR indicates that it needs a time extension to consider approval, the applicant may be put in a difficult situation because if it declines the extension it may find the BSR failing to make any decision, let alone giving an approval, in time.

Where these new procedural requirements apply they will have an impact on construction procurement, both traditional and design and build, and on issues such as practical completion, extensions of time and additional costs.  How the market approaches this and addresses these issues remains to be seen.

Also among the new regulations are The Building Regulations etc. (Amendment) (England) Regulations 2023 (SI 2023/ 911) which specify new dutyholder and competence requirements which will apply to all building work, including that undertaken on higher-risk buildings.  Clients, consultants and contractors must comply with various obligations and it is key that a client ensures its designers and contractors, including the Principal Designer and the Principal Contractor, have the necessary competencies to meet the new dutyholder requirements.  These regulations also give a new definition of ‘commencement’ of work for existing and new buildings; and individual buildings that do not meet the definition after three years from when the building control approval was granted will suffer an automatic lapse of building control approval.