Contributors
Last month we saw huge changes in building safety, with two main sets of regulations about Higher Risk Building Procedures and Building Regulations Amendments resulting in one of the biggest shake ups to the industry in recent memory.
These Regulations introduced wholesale changes from 1 October for both higher-risk buildings (HRBs) and non-HRBs in England.
For HRBs this included the new building control Gateway regime where approvals are now needed from the Building Safety Regulator (BSR) before works start and after they are completed, a new change control process which will change how variations are made during the works, and the introduction of the Golden Thread of information.
For all buildings, HRBs and non-HRBs, the changes include the introduction of a dutyholder and competence regime which seeks to raise the bar on accountability and skill levels of certain stakeholders when working on projects, and the automatic lapse of building control approvals after 3 years from application for approval.
However, there are some limited exceptions where the changes won't apply – including where the changes would technically apply but the works falls into the Regulations' transitional arrangements.
In transition
The transitional period started on 1 October 2023 and ends on 6 April 2024. The transitional provisions themselves are both lengthy and complex, and whether or not they apply depends on very specific criteria.
To help everyone understand these better (including local government, approved inspectors and fire and rescue authorities), the Government published a 25-page circular letter on 31 October explaining key features of the new regime, including the transitional provisions.
Transition for HRBs
For HRBs, the transitional provisions apply where before 1 October 2023 for HRB work or work to existing HRBs, for a particular building:
- an initial notice has been given to a local authority and has been accepted (or deemed accepted)
- full plans have been deposited with a local authority
(We will refer to these as the transitional conditions).
However, even if these transitional conditions are met, the works must still be "significantly progressed" before 6 April 2024 if they are to remain under the old regime. "Significantly progressed" is defined in legislation and means:
- for new HRBs – when the pouring of concrete for that building has started in relation to the permanent placement of:
- the trench, pad or raft foundations, or
- the piling
- for works to an existing HRB - when that work has "started"
- for building work that consists of a material change of use of a building - when work to effect that change of use has "started".
However, the exact meaning of "started" is less clear, so further guidance is awaited.
There are also procedures to be followed to stay within the old regime. For example, not more than five working days after the day on which the work is to be regarded as "sufficiently progressed", the local authority must be sent a notice – which must be copied to the approved inspector, if there is one. Some developments or works may have been "sufficiently progressed" before 1 October 2023 though, in which case they should submit this notice as soon as possible. By 6 March 2024, local authorities must notify the BSR of HRB works where they have not received a "sufficiently progressed" notice – at which point those projects will be on the BSR's radar, although a notice can be submitted up to 6 April 2024.
Even if the above transitional conditions are met at 1 October 2023, there may be subsequent changes which mean the new regime applies, for example where building control approval for the work lapses, the initial notice for the work is cancelled, or full plans are rejected.
For projects involving an approved inspector, the approved inspector must become a registered building control approver by 6 April 2024, or the new building control regime will then apply.
And even if the HRB works stay outside the new regime and are completed under the old regime, parts of the building safety regime will apply for the occupation phase, such as the accountable person regime and registration of the HRB before occupation (existing HRBs should already be registered).
For more, see our factsheet here, and pages 2 to 5 of the circular letter.
Transition for HRBs and non-HRBs
There are also transitional provisions between 1 October 2023 and 6 April 2024 for HRBs and non-HRBs, relating to:
- dutyholders and competence
- amendments around starting on site and commencement of work
- amendments to regulation 38 of the Building Regulations 2010 (about fire safety information).
These are touched upon in the circular letter.
This highlights that for non-HRBs, some "amendments made to the Building Regulations 2010 do not apply to building work where a building notice is issued or full plans are deposited with the local authority in relation to the work or work has started before 1 October 2023" (unless the local authority subsequently rejects the deposited plans). However, again, if the works have not "started" before 6 April 2024, the dutyholder and competence regulations, the amendments to regulation 38 of the Building Regulations 2010, and the regulations requiring start on site and commencement notices to be given will apply.
Another change is that building control approval on new building work will now lapse automatically three years from the date of the application for building control approval, if works have not "commenced" by then. A new more stringent definition of "commencement" is also set out in legislation. The circular letter states "the new requirements with regards to lapse of building control apply even to plans or initial notices submitted and agreed before 1 October if building work has not started on site by 6 April 2024".
There is also further information about the transitional provisions for approved inspectors set out in the letter.
This is a very high-level summary of some of the main transitional provisions – the Regulations contain much more detail, covering various different scenarios. If you are affected, please get in touch. In the meantime, you can find out more about building safety on our Building Safety Hub.
