Secondary Legislation Published – Part 3 of the Building Safety Act 2022

The government has published a suite of secondary legislation which will come into force on 1^st October 2023 and implement Part 3 of the Building Safety Act which addresses the new building control regime. We set out below the key elements of the secondary legislation, and consider the corresponding government guidance issued in respect of the building control regime.

1. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

As we know, before building work starts a building control approval application must be submitted to the Regulator and approved.  The guidance informs us that the Regulator has 12 weeks to assess an application for new high-risk building (“HRB”) work, and 8 weeks for works to an existing HRB.

Part 2 of the secondary legislation sets out the procedures for applying for building control approval in relation to new and existing HRB’s and details the information that must be submitted with the application.

Part 3 sets out the change control process where a document which was approved by the Regulator at the application stage, needs to be changed following approval.

Part 4 sets out provisions in relation the golden thread information, including the obligations on the client, principal designer, and principal contractor to maintain the golden thread. The guidance identifies the key outputs of the golden thread at each key stage. For example, prior to the commencement of building work, the key outputs of golden thread include the approval to commence building work (once achieved), and an inspection schedule that includes points (notification points) where work will be assessed before that element of the project can progress.

Part 5 sets out the procedures for applying for a completion certificate and also for partial completion certificates where a building will be occupied before all of the higher-risk building work is completed.

Part 6 sets out provisions relating to inspections, testing and sampling, and review, and  an appeal of the Regulators decision if the Regulator fails to make a decision within the relevant time period.

The guidance provides useful clarity on the sanctions at the Regulators disposal, for example providing false or misleading information to the Regulator as part of the building control regime can attract an unlimited fine or up to two years of imprisonment.

2. The Building Regulations etc. (Amendment) (England) Regulations 2023

This piece of secondary legislation makes a number of amendments to the Building Regulations 2010 and provides that most of the procedural requirements in the Building Regulations do not apply in relation to HRB’s.

Regulation 6 inserts a new Part 2A into the Building Regulations which sets out the arrangements a client must make, including the appointment of a principal contractor and a principal designer, and provisions as to the duties and competence of persons working on a project. Regulation 6 also provides that the client must notify the relevant authority where the principal contractor or principal designer in relation to the work changes, and that after completion of the work the client must send a notice to the relevant authority which includes compliance statements in respect of the completed   work.

3. The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023.

The Building Safety Act introduces a new regulatory regime for the building control profession under which approved inspectors will be replaced by registered building control approvers. This piece of secondary legislation provides the registration period for registered building inspectors and registered building control approvers, and also specifies those decisions of the Regulator in relation to registration of those inspectors and approvers, which are subject to review under section 25 of the Building Safety Act 2022 and makes provision in relation to appeal following a review.

The guidance informs us that if the building work is subject to an initial notice, the approved inspector overseeing the project must have registered as a building control approver by day one of the new RBCI regime (6th April 2024). This registration enables them to continue supervising ongoing HRB work.

The guidance also confirms that the new regulatory regime for HRB’s will have a set of criteria to allow projects to continue under the current framework.  For transitional arrangements to apply to HRB work, two conditions must be met:

1. an initial notice must have been given to a local authority (and not be rejected), or full plans must have been deposited with a local authority (and not be rejected) before the day the new regime comes into force (1st October 2023); and
2. the HRB work must be “sufficiently progressed” within six months of the new regime coming into force (6th April 2024).

For HRB projects that meet these two criteria, they will continue through to completion using the currently regulatory framework, and Gateways 2 and 3 will not apply.  Should an HRB project not meet these criteria, the project would pass to the  Regulator.

Government response to the building control consultation

In addition, the government has published a consultation response on changes to the building control profession and building control process for approved inspectors. The response makes clear that approved inspectors must register as building control approvers, in order to continue to undertake building control work, and individual inspectors must register with the Regulator and be capable of meeting certain criteria to be able to provide advice to local authorities and the Regulator (collectively building control authorities) and registered building control approvers. The response also makes clear that registered building control approvers and building control authorities must obtain and consider the advice of a registered building inspector before carrying out certain building control functions.

As autumn looms, we are seeing  an increase in  the publication of secondary legislation and guidance from the government in relation to the Building Safety Act (see our recent article on the governments response to the DLUHC’s consultation here). Secondary legislation like the above is crucial to improve our understanding of how the new regime will be enshrined in law. We will continue to track secondary legislation and new guidance as it is handed down by the government, and will provide further updates throughout September and October.