Note on Building Safety Act Secondary Legislation
October 2023Introduction
This note will mainly focus on what certificates and declarations will need to be provided and when, for the carrying out of works to an existing higher-risk building, as per the Building Safety Act and the related secondary legislation recently published. Much of this information can be found in The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 and The Building Regulations etc. (Amendment) (England) Regulations 2023, which both came into force on 1st October 2023.
We touch upon the role of the client under the new regulations, but focus on the declarations/ certificates that the PD/ PC will need to provide on the project. We also consider the new dutyholder regime which will apply as a result of the building regulations applying. It is also worth noting that this regime will also apply to apply to work on all buildings subject to Building Regulations including existing residential buildings and not just to higher risk buildings.
Building Control Approval
Application
Before any person starts work in relation to the construction of an existing higher-risk building (‘HRB work’)[1] or a stage of the HRB work, the client must submit an application for building control approval to the Building Safety Regulator and be granted that approval. The contents of the application depend on whether or not the work is Category A or Category B work. What constitutes Category A work is set out in Chapter 2, Part 2 12 (6). Anything that does not fall within Category A is considered Category B.
For Category A work Regulation 12 (2) (c) (i) to (vii) sets out what will need to be provided and we have highlighted below some of the key ones for designers and contractors to be aware of as whilst this duty sits with the client we can foresee that many clients will rely on their designers and contractors to assist them with the provision of this information in particular in relation to the following:
(i) A competence declaration. This is in relation to the PD, PC and any other person appointed as at the date of the application. It is from the Client and must be provided with the application in the form at Schedule 1, Part 1.
The competence declaration must state that the client has complied with regulation 11E(2)(b) (consideration of past misconduct including any serious sanctions in the last 5 years) of the 2010 Regulations and having taken all reasonable steps, is satisfied that the principal contractor/ designer fulfils the requirements in regulations 11F(1) and (2) and 11H(1) of the 2010 Regulations. There must also be a declaration as to the truth of that statement.
(ii) A construction control plan. This is for the client to provide to set out the strategies, policies and procedures in place for the following issues: planning, managing and monitoring the work; for identifying, assessing and keeping under review the competencies of those involved; for supporting co-operation between designers and contractors; the appointments of those duty holders including a summary of their responsibilities and for revising the construction control plan itself..[2]
(iii) A change control plan. This has to set out the strategies, policies and procedures to ensure any controlled change takes place in accordance with regulation 18 and how those changes will be logged in accordance with regulation 19. The log has to explain how changes were identified, how the impact of those changes has been considered and the decision making procedures for those changes, how they are recorded and assessed for notification to the regulator and how the effectiveness of the change control plan will be reviewed by dutyholders[3].
(v) A Building Regulations compliance statement[4]. This statement must set out the approach taken in designing the work to be carried out to the HRB and the building standards applied in particular the approach taken to each element to ensure compliance and the reasons for adopting that approach, together with an explanation of why the approach is appropriate and ensures compliance with all applicable requirements of the building regulations. If the application is only for a stage of the work then it must set out the design principles and building standards to be applied to the work for the first stage and a summary of the design principles and building standards to be applied beyond that stage..
For Category B work to existing higher-risk buildings these documents are not compulsory but down to the discretion of the applicant. However the regulator can compel them to be produced during his consideration of the application[5].
Decisions
The regulator must grant the building control approval sought in a building control approval application unless the application:
- does not comply with the requirements of the relevant regulations[6];
- is not sufficiently detailed in any respect to allow the regulator to determine whether the HRB work would contravene any applicable requirement of the building regulations;
- shows the HRB work would contravene any applicable requirement of the building regulations; or
- shows the strategies, policies or procedures in relation to the HRB work would contravene the requirements of relevant regulations[7].
The regulator must notify the applicant of the outcome of the application within 8 weeks[8].
Completion Certificates/ Partial Completion Certificates
Applications
A completion certificate or partial completion certificate is needed before a higher-risk building can be occupied[9]. An application for a completion certificate[10], in relation to HRB work, or for a partial completion certificate[11], in relation to HRB work where the building is to be occupied before completion to the work, must be made in writing to the regulator and signed by the client.
When applying for a completion certificate or part of a completion certificate, a compliance declaration must be given by the principal contractor and designer. This certifies that the principal contractor/ principal designer has fulfilled their duties under Part 2A (dutyholders and competence) of the 2010 Regulations (or if they were unable to do so, an explanation why). This certificate must also be given by the outgoing PD (or sole or lead designer) or PC (or sole contractor) if the client appoints a new principal contractor or principal designer at any time after building control approval for HRB work is granted[12].
Decisions
Where the regulator receives a completion certificate/ partial completion certificate application in relation HRB work which is valid[13], the regulator must notify the applicant to that effect and determine it within 8 weeks of the date it is received by the regulator or within such longer period as at any time the regulator and applicant agree in writing. The regulator must issue a completion/ partial completion certificate[14] if it is satisfied, after taking all reasonable steps, that:
- HRB work is completed and complies with all applicable requirements of the building regulations;
- the documents and information submitted as part of the completion certificate/ partial completion certificate application are complete and accurate; and
- the information required to be provided to the relevant person is complete and has been provided.
If the application is approved the regulator must issue a completion certificate/ partial completion certificate at the same time as giving the notice of its decision. A certificate issued is evidence (but not conclusive evidence) that all applicable requirements of the building regulations have been complied with in relation to the HRB work.
Dutyholder Regime
A principal designer/ principal contractor will need the skills, knowledge, experience and behaviours necessary, if they are an individual, or the organisational capacity, if they are an organisation, to fulfil the duties of a principal designer or principal contractor in relation to the design or building work included in the project[15]. A person cannot act as the PD/ PC if they do not satisfy these general requirements[16].
The principal designer’s duties are quite far reaching. For example they include (amongst other things) coordinating matters relating to design work so that all reasonable steps are taken to ensure that the design is such so that if built, the building works to which the design relates is in accordance with all relevant requirements (i.e. compliant with Regulations).
Any person carrying out any design work must also take all reasonable steps to ensure the design work carried out by them is planned, managed and monitored, and any person carrying out building work must cooperate with the client, designers and contractors to the extent necessary to ensure that the work is in compliance with all relevant requirements[17].
There is also effectively a “duty to warn” of non-compliance in that all designers must consider other design work which directly relates to the project and report any concerns as to compliance with all relevant requirements to the principal designer[18].
Conclusion
This is a wholescale change to the regime for Building Control Approval for work on existing Higher-Risk Buildings with a new duty holder regime which is now in effect. Much of this new legislation guidance is still awaited and the latest update from the BSR is that there are over 13,000 existing buildings now registered with them for assessment. We will continue to keep you updated as guidance and further legislation is provided.
For further information please contact:
Contracts & Project Advisory – Andrew Croft and Rhia Gould
Disputes & Regulatory – Jo Lewis & Michael Salau
[1] Part 2, Chapter 2, regulation 11 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[2] Schedule 1 clause 2 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[3] Schedule 1 clause 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[4] Part 2, Chapter 2, regulation 12 (2) (c) (v) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909 and Schedule 1 clause 4.
[5] Part 2, Chapter 2, regulation 12 (5) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No.909.
[6] Part 2, Chapter 2, regulation 15 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[7] Regulations 18-21, 26-29, 31-32, 37-39 and Part 2A of the Building (Local Authority Charges) Regulations 2010
[8] Part 2, Chapter 1, regulation 13 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[9] Part 7, regulation 58 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[10] Part 5, regulation 40 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[11] Part 5, regulation 45 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[12] Part 3, Regulation 29(3) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[13] Part 5, regulations 41 and 45 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[14] Part 5, regulations 44 and 45 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 No. 909
[15] Part 2A, Chapter 3, regulations 11G and 11H of the Building Regulations etc. (Amendment) (England) Regulations 2023 No. 911
[16] Part 2A, Chapter 3, regulations 11G and 11H of the Building Regulations etc. (Amendment) (England) Regulations 2023 No. 911
[17] Part 2A, Chapter 3, regulation 11J of the Building Regulations etc. (Amendment) (England) Regulations 2023 No. 911
[18] Part 2A Chapter 3 regulation 11K (4) of the Building Regulations etc (Amendment) (England) Regulations 2023 No.911
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