The following seeks to provide a round-up of the guidance and legislation issued under the BSA since our last update in September.
After the flurry of new rules and regulations taking effect on 1 October 2023, matters have been relatively quiet (legislatively speaking) on the building safety front.
In the New Year we will be looking out for the much anticipated decision in Triathlon Homes v Get Living concerning the first Remediation Contribution Order heard by the First Tier Tribunal.
Next significant date in BSA calendar is April 2024, when a number of the transitional arrangements will come to an end.
Until then, what follows is a reminder of the key changes that came into force on 1 October 2023:
1. Building Safety Regulator ("BSR")
From 1 October 2023, the BSR is the building control authority for higher-risk buildings in England. Building work cannot start until the BSR has approved the building control approval application (known as planning gateway 2). Upon completion of the works, the building cannot be occupied until the BSR has issued a completion certificate (known as planning gateway 3).
2. Registration of new High Rise Buildings
The Building Safety Register is established under section 78 of the BSA. From the 1 October 2023, all new higher-risk buildings must be registered with the BSR. Until the new building has been registered, units must not be occupied. For higher-risk buildings that already occupied, failure to register before this date is now an offence and could result in a fine, imprisonment or both.
3. The new building control regime for higher-risk buildings
3.1 The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
These regulations cover procedures and various matters including: (a) building control approval for new Higher Risk Buildings; (b) building control approval for existing Higher Risk Buildings; (c) changes before and during construction; (d) 'golden thread' and mandatory occurrence reporting; and (e) inspections.
3.2 The Building Safety Act 2022 (Consequential Amendments etc) Regulations 2023
These regulations are important for remedial schemes and confirm that these regulations will not apply to developments where notice or full plans were deposited before the regulations come into force in the Autumn.
3.3 The Building Regulations etc. (Amendment) (England) Regulations 2023
These regulations amend the Building Regulations 2010 to bring in changes which, amongst other things, facilitate the new dutyholder regime and the planning gateways.
3.4 The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023
These Regulations deal with the management of building safety risks in occupied, higher-risk buildings. Including (a) how to apply for a building assessment certificate and what that certificate must contain; (b) how an accountable person must comply when managing building safety risks; and (c) the content of a safety case report prepared.
4. Building Control Approver Regime
The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023 came into force on 1 October 2023 and cover the transitional provisions from the old, approved inspector regime to the new building control approver regime and how that change will impact on the existing Approved Inspectors Regulations.
5. Amendments to fire safety regulations
5.1 Section 156 of the Building Safety Act introduces amendments to the Regulatory Reform (Fire Safety) Order 2005 taking effect on 1 October 2023. These changes effect the duties of the 'Responsible Person' and aim enhance cooperation and coordination, improve the recording and sharing of fire safety information, simplify enforcement against non-compliance and ensure residents have access to comprehensive fire safety information.
6. HSE strategic plan https://www.hse.gov.uk/building-safety/assets/docs/strategic-plan.pdf
6.1 Given the Government might be moving the BSR from the HSE, it is interesting to see that a strategic plan has been published. Noting the pledge in the plan to "…develop strong relationships…" with other regulators including the Regulator of Social Housing and the Housing Ombudsman. It provides a roadmap for future Regulation, complaints systems, enforcement on un-remediated buildings and assessments as to how it is all working. So whilst we don't have detail - we have an outline of what might be on the way.
DAC Beachcroft has a dedicated building safety team with extensive experience advising all stakeholders on how best to prepare for, manage and mitigate the implications of the Building Safety Act and associated legislation. As well as proactive advice on how the legislation affects commercial interests, we help our clients navigate the risks in procurement and contract management, legacy claims, extended exposures under the Act, construction products, commercial disputes and insurance issues. We also offer bespoke training on how the Building Safety Act impacts across the industry.
