Over the past year, changes to building safety have forged ahead at an unprecedented pace, at times too quickly for comfort. There's still much to do, but it's worth taking stock how far we've come, and prepare ourselves for what comes next in 2024.
By the end of 2022, we knew the vague outline of how building safety in 2023 might look. We had seen the government's various consultations (particularly the "consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings") setting out the government's thinking. But we were waiting for the final details.
New year and resolute
In January 2023, we were raring to go. With draft legislation in hand, we were now more certain about what a higher-risk building (HRB) was likely to be.
And for the occupation stage, things were already changing with new duties around displaying fire safety information, providing information to residents about fire doors, wayfinding signage, retaining plans and information in a secure information box, and regularly inspecting fire-fighting equipment. (For more, see here).
Springing forward into a higher gear
Spring brought significant changes for HRBs.
From early April, everyone needed to identify whether they had an HRB under The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023. Very broadly, these are buildings that are 18m or seven storeys high or more, with two or more residential units – with more complex rules for hospitals, care homes, hotels, secure residential institutions (like prisons), military barracks, and buildings containing living accommodation for military personnel. (For more, see here).
Under other new legislation, the new Principal Accountable Person (PAP) had to register any HRBs with the Building Safety Regulator (BSR) before 1 October 2023 – with the HSE warning that owners and managers failing to register in time "will be investigated and may face prosecution".
On top of that, a third piece of legislation required that "key building information" (KBI) had to be provided within 28 days of the PAP's application to register the HRB. This included information about fire and smoke controls, fire doors, staircases and external walls. (For more on PAPs, registration and KBI, see here).
Hotting up in the summer
By Summer, we were told that the bulk of the new building safety regime changes would likely come into force in Autumn. The industry waited impatiently for the draft legislation – and on 17 August 2023, the government issued five sets of draft regulations plus three sets of consultation responses on aspects of the new building control regime and safety risks for HRBs (more here).
The HRB Procedures Regulations introduce:
- Gateway 2 - BSR building control approval before works commence
- Change control procedures- certain changes to the works now require prior notification to or approval from the BSR
- Golden thread of information – in electronic format, transferrable electronically, accurate, secure
- Mandatory occurrence reporting – prompt reporting of safety occurrences to the principal dutyholders
- Information handed over on completion– including the golden thread and "BFLO information"
- Gateway 3 - a BSR completion certificate on completion of the work.
The BR Amendments Regulations amended the Building Regulations 2010 (and other legislation) introducing:
- New dutyholders and competence regimes - new duties and competency requirements for key stakeholders in construction projects
- Regulator’s Notices – under which the BSR can become the building control body for HRBs and non-HRBs on the same project
- Compliance declarations – provided within five days of completion of the work, from the client, principal contractor and principal designer
- Automatic lapse of building control approval – lapsing three years from the date of the application for building control approval, if work has not "commenced"
- Replacement of "deposit of plans" – with a new process of “applications for building control approval”.
Pressure was building, as both Regulations were to come into force on 1 October 2023.
And other developments were brewing around second staircases. In late 2022, the government announced in a consultation that it was “considering rules to mandate second staircases in new residential buildings over 30m”. In late July 2023, Michael Gove said “18m will be the threshold that we will introduce for new buildings requiring second staircases… there will be transitional arrangements”. (See more here).
Falling into new habits
1 October marked a new era for building safety.
The new regime for HRBs now include the Gateways, change control, golden thread and other changes mentioned above. The new regime for HRBs and non-HRBs now incorporated the dutyholder and competence regimes, automatic lapse of building control approvals, and other above changes.
That said, some buildings (both HRB and non-HRB) fall within the complex transitional arrangements between 1 October 2023 to April 2024.
Gove has also provided more information about the transitional arrangements for second staircases - developers will have 30 months to take on board the new building regulation changes to Approved Document B requiring all new residential buildings above 18m to have a second staircase.
Preparing for 2024
While so much progress has been made in 2023, there is still more to come. Key anticipated developments in 2024 include:
6 April 2024, the transitional period ends
For HRB works, to stay under the old regime the works must be "significantly progressed" before 6 April 2024 (although from 6 March, local authorities notify the BSR of HRB works for which they've not received a "sufficiently progressed" notice). For HRB and non-HRBs to stay under the old regime in relation to the dutyholders and the lapse of building control, works must "start" before 6 April too (more here).
Draft regulations were published on 17 October 2023. These cover the golden thread requirements during the in-occupation phase of an HRB (the design and construct phase is covered in the HRB Procedures Regulations mentioned above). The draft regulations are subject to what is called the affirmative procedure (unlike the regulations published in August referred to above) which means that these regulations must be reviewed and passed in both Houses of Parliament before they can take effect. We don't know at this time when any debate on the draft regulations will take place.
We await information on the changes to Approved Document B and timescales for the 30 month transitional period to start.
Publication of the final report is anticipated in 2024.
There was progress on construction products in 2023, with the government's publication of the Independent Review of the Construction Product Testing Regime (by Morrell and Day). We anticipate further updates, guidance and perhaps even legislation following on from that report, as well as on UKCA and CE marking for construction products. (More here.)
Registered Building Inspectors (RBI)
The period for applications to become RBIs comes to an end in April 2024. Measures to put in place multi-disciplinary teams to assist the BSR in administering the building control process for HRBs are currently being prepared and are likely to be in place by the end of the transitional period too.
As 2024 progresses we can expect to see the revised and strengthened building control regime really begin to take effect – and what a difference that year will make too.