Amy Pairman is an associate and Eric Johnstone is a senior associate at law firm Brodies
On 17 August, the government released its response to its 2022 consultation on the new building-control regime for ‘high-risk buildings’, as part of changes under the Building Safety Act. The government has also published, for the first time, the proposed detailed regulations that set out this new regime, which is due to come into force on 1 October.
“The new approach is said to have come about due to ‘concerns raised by the industry and the importance of applying a definition that is viable for developers to comply with’”
This new regime fundamentally changes the building-control requirements in relation to the design and construction of new high-risk buildings and works to existing such buildings (a high-risk building during construction being a building above 18 metres in height or seven storeys with two residential units; or a hospital or care home).
A building falling under this new regime will be subject to a series of robust “hard stops”, both before the works commence and after (known as ‘Gateways’), as well as increased regulatory oversight during the works.
The government has recognised that there will be situations where works are already underway on a project (or are due to commence shortly) when the new regime comes into force, leading to difficult questions about which regime applies. This led to the suggestion in the 2022 consultation that there would be “transitional arrangements”, which (if satisfied) would allow works to a high-risk building to continue under the old regime.
The recent new regulations and the government’s response to the consultation confirm that the government will put these transitional arrangements in place, but with slight changes to what was proposed in the 2022 consultation.
Under the proposed Building (Higher-Risk Building Procedures) Regulations 2023, for the transitional arrangements to apply, two conditions must be met. If these conditions are satisfied, the works will not be subject to the new high-risk building regime. The conditions are:
- Before 1 October 2023: an initial notice must have been given to a local authority (and not rejected), or full plans must have been deposited with a local authority (and not rejected); and
- Before April 2024 (ie, within six months of the new regime coming into force): works to create a new high-risk building must be “sufficiently progressed”, or where it is works to an existing high-risk building, these works must have “started”.
It is this second condition where the government has changed from what was proposed in 2022, as the previous proposal was a requirement to have “commenced works” within six months – the suggestion being that stringent definitions of ‘commencement’ would be put in place (both for works to create a new high-risk building and existing works) to avoid developers “gaming the system”. Now, for works to an existing high-risk building, all that is required is that the works have “started”, with no further definition given. For works to create a new high-risk building, “sufficiently progressed” is defined in the new regulations as being “when the pouring of concrete for (i) the permanent placement of the trench, pad or raft foundations, or (ii) the permanent placement of piling for that building has started”.
This new approach, and distinction between new works and works to existing high-risk buildings, is said to have come about due to “concerns raised by the industry and the importance of applying a definition that is viable for developers to comply with”.
While the government’s recent response to the 2022 consultation focuses on the two headline conditions above, there seem to be three very important further requirements hidden in the small print:
- Each individual building needs to satisfy the two conditions. This means in a multi-building project it is not enough for just one building in the project to have its initial notice in place and have commenced work – each building must individually satisfy the conditions. This means that, in projects with phased commencement, not all buildings will be “sufficiently progressed” by April 2024, meaning those buildings will come under the new regime.
- You must have a registered approved inspector. Changes under the Building Safety Act mean the building-control profession will become a registered profession on 6 April 2024. When it comes to the transitional provisions, the government has said this means any approved inspector overseeing the project must have registered by 6 April 2024 for the project to continue to benefit from the transitional arrangements and remain under private sector building control.
- Notification needs to be given that the works are “sufficiently progressed”. Not only must the building work satisfy the definition of sufficiently progressed within six months, but the person carrying out the work must also notify the local authority no less than five days after the point that the work is considered to be sufficiently progressed and before 6 April 2024.
If all the requirements of the transitional provisions are met, then the works will remain under the old regime. If they are not, then the work will transfer to the new Building Safety Regulator and will be subject to the new, more stringent regime, with likely knock-on impacts to the time and cost of the project. It is therefore important that all parties understand the status of new projects and determine whether or not they will satisfy the transitional provision requirements, or whether they will be subject to the new regime.