Building safety law implications for energy projects

The introduction of the Building Safety Act 2022 (BSA) represented a significant overhaul of building safety legislation in England and Wales. Although much of the coverage has centred on its impact on high-rise residential buildings, some of the changes apply to work outside of this. 

How could building safety changes impact an energy project?

• Building Regulations – The Building Regulations 2010 set out minimum standards for building work, which is widely defined and includes construction, alteration and extension of buildings. There are specific exemptions, for example the erection of certain buildings on a site where a licence under the Nuclear Installations Act 1965 is in force, however, the wide definition of building work means some energy projects could potentially be captured where for example it includes the construction or alteration of a building. 
  
  Moreover, the building regulations include specific obligations in respect of energy installations to existing buildings, such as heat pumps, solar panels and wind turbines along with energy efficiency, ventilation and insulation standards. The building regulations have also been updated to include specific requirements for electric vehicle charging points.
   
• Works to a high-rise residential building - Some energy projects may necessitate work to be carried out to residential properties such a retrofit projects and heat network schemes. Where this is the case, the parties will need to think carefully about whether the works fall under Schedule 2 Exempt Work, and, if the residential block is over 18m and/or seven storeys high, whether the Building (Higher Risk Buildings Procedures) (England) Regulations 2023applies. If the works are not exempt then there could be further implications particularly to timescales and requirements for any works to be inspected by the regulator.

The role of dutyholders in ensuring building safety

The BSA introduces a structured framework for building regulations dutyholders, who are pivotal in ensuring the safety of buildings. Dutyholders include clients, designers and contractors, each with specific responsibilities and obligations (while this may sound similar to the Construction (Design and Management) Regulations 2015 (CDM Regulations), the building regulations dutyholders have different roles to those under the CDM Regulations).

At a very high level, some key building regulations dutyholder roles include the following:

• Clients are required to make suitable arrangements for managing projects, ensuring that safety is prioritised from the outset.
• Designers must ensure that their designs comply with building regulations and do not compromise safety.
• Building Regulations Principal Designer must plan, manage, monitor and co-ordinate matters related to the design of the project, to ensure compliance with building safety requirements and collaboration between all dutyholders.
• Contractors are responsible for executing construction work safely and in accordance with the approved plans.
• Building Regulations Principal Contractor must plan, manage, monitor and co-ordinate matters related to building work, to ensure compliance with building safety requirements and collaboration between all dutyholders.

Dutyholders must collaborate to ensure compliance with safety standards, and they are required to maintain comprehensive records of safety measures and decisions. This collaborative approach is designed to foster a culture of safety and accountability.

A Building Regulations Principal Designer and Building Regulations Principal Contractor must be appointed on all projects where building regulations apply and there is more than one contractor. Those appointed to those roles (and the other dutyholder roles), however, must meet certain competency requirements. These competencies differ from those of a CDM Principal Designer or Principal Contractor and people appointed to those roles may not necessarily be competent to act as a Building Regulations Principal Designer or Building Regulations Principal Contractor. It is important that those appointed meet the requirements of these roles as, if they do not, a Client will not have met their obligation to appoint someone to those roles and could face enforcement action.

Relevant amendments to the Building Act 1984

The BSA amends the Building Act 1984, introducing several changes that could impact energy projects where building regulations apply. Notably, amendments that enhance the powers of local authorities and the Building Safety Regulator to enforce compliance with building regulations.

Significant changes include:

• Increased penalties: The amendments introduce more severe penalties for non-compliance, including fines and potential imprisonment for serious breaches.
• Enhanced inspection and enforcement powers: Local authorities and the Building Safety Regulator now have broader powers to inspect buildings and enforce compliance.

These amendments aim to strengthen the regulatory framework and ensure that all buildings across all sectors meet the highest safety standards.

Role and functions of the Building Safety Regulator

The Regulator plays a central role in overseeing compliance and enforcement related to all building work. Established under the BSA, the Regulator is responsible for:

• Regulatory oversight: Ensuring that dutyholders comply with building safety regulations and standards.
• Enforcement: Taking enforcement action against non-compliance, including issuing fines and prosecuting serious breaches.
• Guidance and support: Providing guidance and support to dutyholders, helping them understand and meet their obligations.
• Market surveillance: Monitoring the construction products market to ensure compliance with safety standards.

The Regulator's role is critical in maintaining high safety standards and ensuring that all buildings are safe.

For more information and updates on building safety legislation please see our Building Safety Hub.