Last month, we saw a raft of draft building safety regulations published by the government (currently laid before Parliament) and we are awaiting more. These will bring in sweeping changes for the construction industry, starting in just a few weeks' time – but the impacts of the changes will take the sector months, if not years, to get used to.
Of the draft regulations already published, the Building Regulations etc (Amendment) (England) Regulations 2023 (which we'll refer to as the BR Amendment Regulations) and the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (which we'll refer to as the HRB Procedure Regulations) set out major changes impacting the pre-construction and construction phases for projects, which the wider construction needs to understand and start preparing for now.
We will focus here on the BR Amendment Regulations. You can find out more about the HRB Procedure Regulations here.
What do the BR Amendment Regulations change?
The BR Amendment Regulations contain a series of amendments to the Building Regulations 2010 and also to various other secondary legislation, being:
- The Building (Local Authority Charges) Regulations 2010
- The Energy Performance of Buildings (England and Wales) Regulations 2012
- The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023, and
- The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023.
The Regulations also contain transitional provisions.
As a considerable part of the BR Amendment Regulations is taken up with amending other regulations, reading through the changes can take some time as it involves reading the various regulations side by side.
What are the key changes to be aware of?
The BR Amendment Regulations should be read carefully, but particularly noteworthy changes to be aware of are:
- New dutyholder and competence regime - the dutyholder and competence regime applies to higher-risk buildings (HRBs) and non-HRBs. Identified dutyholders - being the Client, Principal Contractor, contractors, Principal Designer and designers - have general duties (such as ensuring their work is planned, managed and monitored so as to be in compliance with all relevant requirements), plus additional duties depending on their role (for example, the Client will have duties that differ from the Principal Designer's), which are more onerous where HRBs are involved. There are also new competency requirements so that everyone carrying out design or building work is competent and can demonstrate their competence.
- Introduction of Regulator’s Notices - These could be used where a project comprises both HRBs and non-HRBs. In such a case, a developer could find that the Building Safety Regulator would act as the building control body for HRBs, but another building control body could be covering the building control role for the non-HRBs that are part of the same project. These new Regulator Notices will mean there can be a single building control body (i.e the BSR) for both HRBs and non-HRBs on the same project, which will hopefully simplify matters
- Compliance declarations – Within five days of completion of the work, the client will need to provide compliance declarations from itself and the principal dutyholders in relation to the work. For the client, this includes "a statement, signed by the client, confirming that to the best of the client’s knowledge the work complies with all applicable requirements of the building regulations". For the principal contractor, it includes confirmation "that they fulfilled their duties as a principal contractor under Part 2A (dutyholders and competence) of [the Amendment] Regulations" – with a mirroring requirement on principal designers
- Automatic lapse of building control approval – The Building Act 1984 will be amended so that building control approval will automatically lapse three years from the date of the application for building control approval if work to each individual building has not "commenced" (more on this below). This means that if, on a building site, some buildings have been commenced and others have not, the building control application for those buildings which have not yet been commenced will lapse, even if the other buildings have commenced
- New definition of "commencement" of work - “commencement” of work has been defined for existing and new buildings. Very broadly, for new buildings this is "when the sub-surface structure of the building or the extension including all foundations, any basement level (if any) and the structure of ground floor level is complete"; and for existing buildings, there is a reference to 15% of the proposed work being completed. There are also separate provisions around what "commencement" means for "complex buildings" - where "complex buildings" include a building constructed on the same foundation plinth or podium as another, or which has more than one storey below ground level, or which is to be primarily a "public building"
- Replacement of "deposit of plans" – the “deposit of plans” stage referred to in the Building Regulations 2010 will be replaced with references to a new process of “applications for building control approval” for HRBs and non-HRBs (for HRBs this would be Gateway 2).
The BR Amendment Regulations come into force in England on 1 October 2023; and the construction industry will need to move swiftly to familiarise itself with the changes that these (and other) new regulations make to avoid any confusion or delay to projects.