If you've been trying to keep on top of building safety changes, you may be feeling slightly overwhelmed at the moment.
A few short weeks ago, five sets of draft building safety regulations and three consultation responses were published by the government. And while these regulations are currently laid before Parliament awaiting the final nod, they contain wholesale changes to the construction industry that are due to come into play on 1 October. On top of that, two more sets of regulations are due to be published any time now.
Of the five already-published regulations the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (which we'll call the HRB Procedure Regulations) and the Building Regulations etc (Amendment) (England) Regulations 2023 (which we'll call the BR Amendment Regulations) contain the bulk of the pre-construction and construction phase changes that the construction industry needs to get to grips with immediately.
Here, we will focus on the HRB Procedure Regulations. You can find out more about the BR Amendment Regulations here.
What do the HRB Procedure Regulations cover?
Of the five regulations, the HRB Procedure Regulations is easily the most substantial, with its explanatory memorandum running to 69 pages.
Broadly, it covers the following:
- Gateway 2 (before commencement of the works) – building control approval procedures for the construction of new higher-risk buildings (HRBs), and for works to existing HRBs – with approvals coming from the new Building safety Regulator (BSR)
- Change control procedures - before or during construction, certain changes to the works will now require prior notification to or approval from the BSR. Such changes could include a change to current plans of work, a change to any stage of HRB work, and even a change to any strategies, policies or procedures described in any current agreed document
- An outline of the golden thread requirements – such as the golden thread being in electronic format, capable of being transferred electronically, accurate and up-to-date, and secure from unauthorised access. (More detail will follow in one of the two further draft regulations to be published this month)
- Mandatory occurrence reporting systems – being "a system which enables as far as is reasonably practicable the prompt reporting of every safety occurrence to the principal dutyholders by reporting persons", to be established before and maintained during the construction phase.
- Information to be handed over on completion – including the golden thread and the "BFLO information" (there is quite a long definition describing what this BFLO information is)
- Gateway 3 (completion of the works) – details about completion certificate applications to the BSR, including the information to be provided to the BSR in the application. Also further details about BSR inspections ("before determining a completion certificate application the [BSR] must arrange an inspection … for the purpose of assessing whether the work complies with all applicable requirements of the building regulations"), and on how the BSR makes and issues its decision
- A raft of the other topics – such as inspections (and the BSR's right to require information and the opening up of work for inspection), regularisation of unauthorised building work (where here it appears to the BSR that unauthorised building work has been carried out on or after 11 November 1985), review of the BSR's decisions, appeals to the First-tier Tribunal in relation to a BSR decision, and how to make an application to the Secretary of State.
There are also three schedules dealing with:
- Documents relating to the processes described above.
- What work is exempt.
- Transitional provisions.
Other key points to be aware of
Obviously there is a lot of detail in the HRB Procedure Regulations, but the following points are particularly worth noting.
Schedule 1 contains detailed descriptions of what should be included in:
- Competence declarations - including from the principal contractor and principal designer
- The construction control plan - which includes the strategies, policies and procedures the client has adopted to ensure the HRB works comply with building regulations, and to identify and review the competences of persons carrying out HRB works
- The change control plan – as mentioned above
- The building regulations compliance statement - which sets out the approach taken in designing the HRB works and the building standards applied
- The fire and emergency file
- The partial completion strategy, if relevant.
Looking at Schedule 1 will therefore help you to understand what the documentation will look like and what procedures you need to start putting in place.
Section 58 and Schedule 3 contain complex transitional provisions, which are worth looking at in detail, particularly if you have HRB works underway or shortly to be underway.
Finally, the timescales for the BSR approval of applications are as follows (although a longer period can be agreed, presumably at the BSR's request):
- For Gateway 2 - 12 weeks for a new-build HRB, 8 weeks for works on an existing HRB
- For Gateway 3 – 8 weeks.
The HRB Procedure Regulations come into force in England on 1 October 2023, so it is imperative that the industry starts preparing now.