Update on the Building Safety Act and transition to the new regime

The construction industry continues to see legislative change and on 17 August, the UK government announced significant new material on the key subject of building safety. We summarise these latest developments below.

Recap on the new building safety regime 

For several years, the UK (and the housing sector in particular) has been seeking and awaiting a new regulatory regime for building safety. That had been driven by an overriding policy objective that fire safety required new regulation and a more rigorous regime for the approval of new buildings, as well as for occupation. A particular emphasis has been, quite rightly, on higher-risk residential buildings. 

The key themes being promoted in the new regime include taking fire engineering principles (namely, fire prevention, fire mitigation and means of escape) and making that pre-eminent. This is to be effected by the introduction of new statutory "dutyholders" who have to perform a variety of tasks, a rigorous process of activities and notifications ahead of construction and occupation, and an ongoing obligation to maintain information and assess safety as part of the life cycle of residential buildings. Evidencing compliance is going to be mandatory and vital. 

Key features of the new building safety regulatory framework therefore include:

• The establishment of a new national industry body responsible for managing the new regime, namely the Building Safety Regulator (BSR), which is part of the Health & Safety Executive (HSE), in turn a long-standing government body already dealing with health and safety in the workplace.

• A new regulatory focus on "higher-risk buildings", namely residential buildings (with some limited exceptions) that are over 18 metres in height, for the whole life cycle of such buildings. That includes the following:
  i) a 3-gateway approvals process for each of the planning, pre-construction and pre-occupation stages of higher-risk buildings
  ii) requirements to prepare and maintain a "Golden Thread" of information, which really is simply a digital record of all relevant documentation to support fire safety
  iii) a raft of new statutory duties for parties involved with residential buildings, not just higher-risk buildings, with the intent that there are multiple, integrated roles and responsibilities for the design, construction and occupation of buildings. Some duties become more stringent also for higher-risk buildings, reflecting the risk potential.
• Extended rights to bring claims for relevant defects and better remedies for leaseholders. Some of these changes have been extraordinary, with retrospective 30-year limitation periods for defective premises and other prospective claims having a 15-year limitation period. No other industry or sector has that, reflecting the policy driver to have a rigorous regime, coupled with mandatory reporting and proposed rigorous enforcement appropriate to the risks.
• Registration of higher-risk occupied buildings has been established and there is some movement by industry to go through that process. 
• Whereas a roll-out had been anticipated to be in place between April and October 2023, the latest published changes target 1 October 2023 as the key transitional date, with relevant arrangements then to 6 April 2024. So the transition has now become clearer. 

Overall, our clear impression has been that there is a very apparent willingness for industry to become familiar with – and comply with – the new regime. It is equally evident to us that there has been some uncertainty for an extended period as to the detail of the new regime, how to understand it and effect the same. 

Getting a new regime that is effective and achieves its policy outcomes has been critical. These most recent published legislative changes are a significant step towards the provision of the detail as to compliance with the new building safety regime and also transitional periods for when the new regime applies – and that is now imminent. 

We do anticipate however that there will need to be a significant focus on compliance – we anticipate that this will require significant resource which is likely to have to come from external service providers – and will be an elevated risk and compliance issue for residential developers and other dutyholders. The race for government and industry to be ready by 1 October this year, and then 6 April 2024, is now urgently on.

Consultation has been a profound necessity for building safety in the UK. That has been both recognised and effected in relation to legislative change. As a result, draft legislative change has often been shared in draft form and consultation arranged, then collated and published. That seems to have assisted in telegraphing change, but also in gauging support and seeking to build legitimacy of the new regime.

With that background, on 17 August the government released published responses to consultation on the higher-risk building regime. Overall, there seems to be broad support for the new regime – certainly its intent. Some feedback may suggest that the industry is endeavouring to be ready for the new regime and in some areas is taking a neutral, "wait and see" approach. 

Of the extensive body of published consultation responses, some of the more notable issues to us were:

• endorsement of a new national regulator, rather than local authorities. This probably recognises that this is a national issue, requiring a uniform response – and possibly an assessment that local authorities were not preferred to regulate the industry
• generally favourable responses to the new statutory duties. This is probably a consequence, in part, of the new regime evolving from existing health and safety dutyholders under the CDM Regulations as they are known, which relate to health and safety on construction sites
• there seemed to be concerns aired around the transitional arrangements for new work, as well as the regime for notifying of changes for higher-risk buildings. That may be reflective of industry challenges to understand and adjust to the complex new regime and its phased introduction
• other responses indicate a wait and see approach in respect of how the new regime will be operated and administered. That is probably a consequence of industry's overwhelming wish to be supportive of better building safety generally.

Other responses to consultation were also released, on detailed matters including building certification, the safety case approach, mandatory occurrence reporting, the Golden Thread, enforcement, and key building information. The overall impression seems to be that feedback was supportive; there was strong endorsement on various policy initiatives like the reporting and enforcement regime; other areas again had a material proportion of responses taking a neutral position, awaiting to see how the regime progresses.

All in all, the period for consultation is effectively over and the new regulatory regime is soon to be rolled out. 

New regulations introduced 

In keeping with the phased introduction of a very substantial and complex body of new regulation, there have been five further new statutory changes introduced on 17 August 2023.

One of the more significant aspects of these new regulations is the long-awaited transitional arrangements. This has an impact on when the new regime applies for higher-risk buildings, particularly for those schemes that are under construction or very close to that threshold. In summary: 

• Work to or for higher-risk buildings have to be progressed adequately for current building control approval, by the giving and acceptance of an initial notice or by the depositing of full plans by 1 October 2023, to then fall outside the new regime. If that doesn't occur, then the Building Safety Regulator (BSR) becomes the relevant building control authority and work will not be able to start without building control approval from the BSR as part of the new gateway process. That transition then is a very limited window, with periods for accepting notices also to be factored in, and is intended to limit the scope of those buildings being sufficiently advanced so as to negate the new regulations applying. 
• Where the above arrangements are in place, the relevant work to or for a higher-risk building has to be "sufficiently progressed" by 6 April 2024. If relevant, the approved inspector overseeing the project must have registered by 6 April 2024 as a registered building control approver. Further, the party carrying out the work must notify the local authority that the work is considered to be sufficiently progressed before that 6 April 2024 date. If the status of the notice or progress changes, then the project will come under BSR oversight and approval. What is "sufficiently progressed" seems to have an ordinary meaning as defined, so pouring of concrete for foundations or commencement of piling is illustrative. For work to an existing higher-risk building, the building work seems to be sufficiently progressed when the work has started. In any event, this means that there are various interim requirements which need to be confirmed by multiple dutyholders or other parties.
• On completion of any project, the building would be subject to the occupational requirements of the BSA. 

A raft of other regulatory details have also been published, some of which are rigorous, compliance-related requirements. A snapshot of these include:

• The Building Regulations etc. (Amendment) (England) Regulations 2023. These Regulations set out in detail the various dutyholder roles and the competence requirements for the same. There are also rafts of transitional arrangements included here, from the current building control approval regime to the new regime and the role of the new BSR.
• The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023. This body of regulations clarifies the basis upon with decisions may be appealed, but with a 21-day limited window to do so. That appears to be strictly drafted and will likely curtail any challenge if timing requirements are not met. Various notices and related matters are also provided for, in respect of notifications prior to commencement of work and also the appointment of dutyholders and completion of work. The regime is prescriptive and points to a rigorous audit trail being required to map what notices are required and when.
  
• The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. As the name suggests, this has a significant raft of procedural requirements for higher-risk buildings, particularly the processes for the gateway processes up to completion and occupation. Together with transitional provisions, the regime is prescriptive and will require substantial compliance processes and records to navigate through the process.
  
• The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023. This supplements the above, with prescriptive requirements for compliance with the statutory regime for higher-risk buildings, particularly those that are in occupation. That then complements the above regulations, to be part of a whole life cycle regulatory regime for such buildings. 
  
• The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023. This statutory instrument is a forensic updating of a raft of statutes across the UK that implement building control at local authority level, simply to reflect the new national regulator in the Building Safety Regulator (BSR).

We expect that there will be an urgent and immediate response by industry, particularly those that are affected by the 1 October 2023 deadline to notify. Otherwise, whereas the industry had originally been told that April to October 2023 was the period to expect the new building safety regime to be in place, the transition period to 6 April 2024 provides a period to learn, to adjust and to be compliant as appropriate. 

Second staircases: what's still to come?

There is one particular and related issue that has required urgent attention and that relates to second staircases in residential buildings. This had been a major additional regulatory proposal that has been a topic of discussion – and admittedly some concern as to when this would be implemented. That is yet to be made clear, but below is a summary of what we know: 

• The national government had originally proposed, in December 2022, a height threshold of 30 metres for the second staircase requirement. In response, there was generous support in principle, with most industry bodies however advocating for an 18-metre height threshold, for consistency with higher-risk buildings. Our view, like some other industry representatives, had been that the 18-metre level was the more likely outcome – that in turn had been confirmed to the media by the Secretary of State in late July.
• There has been governmental recognition that there has been industry uncertainty as to when these new arrangements would apply. That is entirely justifiable. Those involved with new residential buildings need to know that in seeking planning for - and then building out - new residential buildings, there isn't later change that retrospectively needs to be implemented.
• We don't know what the transitional arrangements will be, however the new regulations introduced above indicate that the government has effected a 6-month transition for those other regulations, but only for those schemes that are under construction and are notified within a tight 6-week window. It is conceivable that this sort of approach may be replicated, to provide a consistent outcome for new builds following the original proposal late last year.

All these matters don’t just have an impact on new requirements and transitional arrangements. There are profound impacts for all parties involved, including:

• For each building that today has planning permission but does not meet any transitional arrangements, will a second staircase require a S.73 application (known as a Minor Material Amendment but effectively is a new planning permission) or a S.96A (Non-Material Amendment) to an existing planning permission? Materiality of the design change will be a factor but different local authorities may take different approaches, as a matter of policy or on a case-by-case basis.
• What design parameters are available or preferred? There may be multiple design options and some will have higher costs, less impact - and vice versa. We are seeing internal and external design solutions as designers seek to mitigate the impact on each level. Whatever options are preferred may affect a building profoundly. 
• Are any additional construction costs and/or loss of value to be borne by the developers or passed on to residential owners? Alternatively, what scope is there for local authorities to allow for creation of value, such as allowing additional height or volume? Are there other ways to compensate for the design change requirement such as adjusting the Community Infrastructure Levy? 

Clearly, there is a balancing of issues and impacts that need to be considered in dealing with these matters. In any event, further legislation will follow very soon to give clarity on how a new second staircase regime is to be effected and with key transitional arrangements.

These new and pending regulatory changes are to effect building safety for residential occupiers, particularly buildings over 18 metres in height. That will require not only rigorous compliance with the new building safety regime but also extensive collaboration and, where appropriate, innovation to best achieve that objective.