Building Safety Act Bulletin: Government response to DLUHC’s consultation on implementing the new building control regime for higher-risk buildings

Yesterday the government published its response to the DLUHC’s consultation published on 20 July 2022 which sought views on proposals for improving the new regime for higher-risk buildings as created by the Building Safety Act.

The government response to the consultation provides valuable insight as to what the industry can expect in terms of the implementation of the new regime, and will allow those in the industry to begin to prepare themselves. We have highlighted the key areas of the government response, in terms of the duty holder regime, the gateway process and the golden thread of information.

The Dutyholder Regime

Strict Liability

The government reiterated that it is committed to improving accountability across the whole built environment sector and implementing the strict liability requirements on all dutyholders.

However, the government has recognised that there is uncertainty in the insurance industry about the role of designers and principal designers, and that this uncertainty may result in a lack of appropriate insurance products for the design community. On this basis the government intends to delay the implementation of the strict liability requirement for designers and principal designers, and in the interim, dilute the requirements for designers and principal designers to ‘take all reasonable steps’.

Competency

Great emphasis is placed upon ensuring competency of the dutyholders. Anyone appointed to undertake design work or building work must not accept that appointment if they do not have the required competency and should inform the principal designer, principal contractor, or the client if they cease to be competent. Regardless of the contractual relationship, those accepting the dutyholder role must satisfy themselves that they have the required competency, and this duty cannot be delegated to another party.

CDM Regulations

The response also confirms our understanding that a client will be able to certify that the principal designer under the CDM regulations, will also act as the principal designer under the Building Safety Act. The response envisages that both principal designer roles will be undertaken by the same organisation, however, there may be instances where the roles are required to be carried out by two separate organisations due to reasons of competency, and in those cases the organisations must work together and cooperate with each other to ensure compliance with both regulatory regimes.

The government has also stated that the Regulator intends to publish guidance on the new dutyholder roles and responsibilities for all those involved in the procurement, design, planning, managing and undertaking of building work, which will provide valuable further clarity to the industry.

The Gateway Process

Application for Building Control approval

The response states that whilst the overall responsibility for submitting building control approval applications will sit with the client, they may delegate this action to the principal contractor, principal dutyholder or another party. The client will be required to sign the application regardless of whether it is submitted by them or someone on their behalf. The Regulator will have 12 weeks to determine an application for building control approval.

The Regulator will be able to allow a ‘staged approach’ to building control approval, where it is satisfied that all the information cannot be provided upfront because of the complexity of the project. Equally, the government intends to allow partial completion for higher-risk buildings subject to stringent safeguards. No residential unit within a new higher-risk building can be occupied without a relevant completion certificate, evidencing that the building work in that part complies with building regulations’ requirements. This will ensure that there is a ‘hard stop’ for buildings occupied in stages.

The government has acknowledged concerns about the proposed 12 week time limit for the determination of a completion certificate application and has reduced the statutory time limit from 12 weeks to 8 weeks accordingly.

The Golden Thread

The government confirmed that the golden thread of information should be stored and transferred electronically and has also confirmed that  the standards that information should meet before being stored in the golden thread are:

• Accessible;
• Accurate and up to date;
• Secure;
• A single point of truth;
• Interoperable;
• Transferrable and accessible;
• Understandable to the intended users; and
• So far as is reasonably practicable, use consistent language and terminology.

The government will not mandate a particular digital solution, coding standard or exchange mechanism as they recognise this could create an unnecessary burden in the industry. They do however strongly encourage the use of building information modelling (BIM) standards through the Construction Playbook. The government has also worked closely with industry stakeholders to ensure the government approach aligns with the wider BIM Framework. Both contractors and designers must be satisfied that the client is aware of their duties before they begin work, and it is expected that, if necessary, they will make the client aware of their duties regarding the golden thread.

It is not envisaged that all the information on the golden thread will be made publicly available. Once buildings are occupied the registration and key building information will be published and residents will be provided proactively with certain information about their building, and will be able to request further information.

The Government response is extremely helpful in assisting the industry to begin to prepare in earnest for the new regime for high-risk buildings. Stay tuned for further updates as we unpack the practical effect of this guidance in more detail.