On 1 October 2023, the latest provisions of the Building Safety Act 2022 (BSA) will come into force which shifts responsibility for High Rise Buildings (HRBs) in England.
From this date, the Building Safety Regulator (BSR) will take over as the Building Control Authority for HRBs in England. This means that Approved Inspectors and Local Authorities will no longer accept new applications for HRBs.
HRBs are buildings which:
- are at least 18 metres in height or have at least 7 storeys; and
- contain at least two residential units, i.e. a dwelling or any other unit of living accommodation (which includes student accommodation)
The BSR has 3 main functions:
- overseeing the safety and standards of all buildings
- facilitating improvements in the competence of construction professionals and building inspectors
- implementing the new regulatory framework for HRBs
Under the new regime, developers seeking HRB approval must provide more comprehensive information at earlier stages in the development process.
Applicants will be required to submit details of the construction process, strategies for managing design changes, and ensuring alignment with approved plans upon completion.
These changes ensure a more stringent and proactive approach to building safety, placing the responsibility firmly on the shoulders of developers and designers.
The Golden Thread
In response to the Grenfell Tower tragedy of 2017, Dame Judith Hackitt’s report “Building a Safer Future” outlined a number of concerns regarding construction processes, including a lack of information, understanding, and responsibility, as well as gaps in the specification process.
It also emphasised the importance of collaborative, digitised information systems to prevent future disasters and the necessity for a “Golden Thread” of information in all higher-risk residential buildings (HRRBs). This, she observed, was to preserve their original design intent and facilitate formal reviews for any changes. This information was also crucial for ongoing maintenance of the buildings.
The concept of the Golden Thread is integral to the provisions of the BSA and which the HSE refers to as the “building’s single source of truth”.
The scope of required information must be proportionate and will cover the following stages:
- planning (Gateway 1): to demonstrate that all safety risks (including fire) have been properly considered (e.g. site layout, location of water supplies and access for emergency services)
- design and construction phase Gateway 2): to demonstrate how the building complies with Building Regulations. Construction work on site cannot begin until complete construction drawings and specifications have been submitted to and approved by the relevant Building Control body
- occupation (Gateway 3): to demonstrate that the building has been constructed and commissioned in accordance with the approved plans before it can be occupied. If any changes, errors, or omissions occur during the construction phase, they must be documented and resubmitted for approval. There will also need to be evidence of fire safety risks will be assessed and managed
The HSE’s guidance requires the information to be:
- kept digitally and securely
- accessible to individuals who require the information to perform their job
- available at the time it is needed, and
- presented in a format that is user-friendly for the individual utilising it.
Duty Holders
These requirements create new and enhanced responsibilities for the parties involved in construction procurement:
- the client (i.e. the owner or developer) will be primarily responsible for ensuring there are appropriate arrangements in place for the creation and management of the Golden Thread, and for ensuring other duty holders meet their responsibilities
- the principal designer is responsible for managing the Golden Thread on a day-to-day basis during the design phase including collaborating with the principal contractor to ensure that all pre-construction design is included
- the principal contractor is responsible for managing and updating the Golden Thread during the construction phase to be handed over to the client at completion
It will also be necessary for Gateway approval to be obtained and registration with the BSR completed before the building can be occupied.
Building Contracts
Most standard form construction contracts require the contractor to comply with statutory requirements. This will include the BSA and so the parties to a building contract may need to consider whether any consequential amendments to the contract conditions are required, for example:
- who should apply for Gateway approval? Whilst the employer under the building contract might be the obvious choice, this responsibility could potentially be delegated to the principal contractor or even the principal designer
- imposing an obligation to co-operate with the making of a Gateway approval application
- how the consequences of any delay in making the application or receiving the approval should be dealt with (including liquidated damages)
- how the procedure for managing variations or changes (or remedial works) to obtain Gateway approval and their consequences should be dealt with
- how the consequences of any Stop Notices issued by the building control authority should be dealth with
For building contracts which have already been entered into, the parties will need to consider whether these new sections of the BSA coming into force will create additional obligations and, if so, whether the contractor is entitled to additional time and/or money.
Approved Inspectors
The role of Approved Inspectors will cease to exist on 6 April 2024 with transitional arrangements in place for Approved Inspectors to become registered as Building Control Approvers who may be appointed for non-HRB work.
Building Control Approvers will:
- advise the applicant on how the Building Regulations apply to the proposed construction works
- check the plans and visit the site
- inspect the works as they progress
- issue a final certificate to confirm compliance with Building Regulations
Two Staircases for buildings taller than 18 metres
The recent announcement by Michael Gove, Secretary of State for Levelling Up, that buildings taller than 18 metres will need at least 2 staircases has added further complexity and is likely to cause delays and re-design challenges for developers and architects.
However, the government has stated that it wants to minimise any potential project disruption by working alongside industry bodies and regulators. This collaboration could also result in transitional measures for the two-staircase rule.
As a result, there may be a surge in project submissions and commencements prior to the implementation date. However, questions remain about how the BSRator will handle projects that are deemed to exploit the process.
As parliament has now reconvened following the summer recess, it’s likely that the coming months will bring about some much-needed clarity through the introduction of essential secondary legislation. In the short term, we will be working to support our clients with regard to adhering to the revised BSA requirements.
Should you require further information, or benefit from our advice, please do not hesitate to contact us for an impartial consultation.
