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1 October 2023: a key date for significant Building Safety changes

Another week, another building safety update – but this is one we have been waiting for as the Government has now provided further information about important details (over 600 pages worth) and secondary legislation which is needed to support the practical implementation of the Building Safety Act (the “BSA”) which will come into force on 1 October 2023. We provide an overview of the key changes and new regulations below.

When will they come into force?
Many of the key provisions as part of this secondary legislation are due to come into force imminently on 1 October 2023.

Why is the new legislation so important?
Until now, it has been unclear how the Government and Building Safety Regulator will put the legal requirements within the BSA into effect – which is a daunting prospect for many stakeholders involved. This new legislation adds some flesh to the bones and is intended to support with the practical implementation of the BSA, and therefore to help ensure responsible parties do not fall foul of the law!

Key changes
On 17 August 2023, the Government published its response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings – including adaptations to the new rules it had originally proposed. The key issues identified were:

  1. The new dutyholder roles and responsibilities;
  2. The new gateway regime;
  3. Management of the golden thread; and
  4. Transitional provisions for higher-risk buildings.

We have written extensively about these issues in past updates (including our prediction at the start of this year about this very phase). You can also read more detailed updates about key building safety elements here:

New Building Safety updates you need to know about
How do you define a “Higher-Risk Building”?
Building Safety Act 2022: Next Steps for Cladding Remediation

New regulations
To address concerns about the above issues, the Government has laid four new sets of Regulations before Parliament:

  1. The Building Safety (Higher-Risk Buildings Procedures) (England) Regulations 2023
    General: These will cover various procedural matters including; varying Building Control approval for new and existing Higher Risk Buildings (“HRB”), changes before and during construction, the Golden Thread and Mandatory Occurrence Reporting (“MOR”) and Inspections.
    Specific: Golden Thread information is set out in Part 4, with Regulation 31 specifying the information and documents that must be kept as part of the Golden Thread of information before building work begins on a HRB. This information includes but is not limited to:
    – the building control details;
    – a copy of fire statements (where applicable);
    – a copy of the plans for higher-risk building;
    – evidence recorded to show compliance with the applicable requirements of the building regulations;
    – any notification of emergency repairs to existing HRB;
    – documents relating to a controlled change;
    – any written report provided to the regulator under regulation 33 (mandatory occurrence reporting: reporting to the regulator); and
    – include the building certificate (if applicable).
    Part 5 sets out the procedures for applying for a completion certificate in relation to HRBs.
  2. The Building Regulations etc. (Amendment) (England) Regulations 2023
    General: These new Regulations amend the Building Regulations 2010 to bring in changes which, amongst other things, facilitate the new dutyholder regime and the planning gateways.
    Specifics: In particular, this will require design and building work to be carried out in accordance with the Building Regulations and include competence requirements.
  3. The Higher-Risk Buildings (Management of Safety Risks etc) (England) (Regulations) 2023
    General: These address building assessment certificates, safety case reports and how information should be provided to various parties interested in a property.
    Specific: These Regulations also set out the detail concerning a number of duties of Accountable Persons (“AP”) and the Principal Accountable Person (“PAP”), which include/ relate to:
    – building assessment certificates (“BACs”);
    – the on-going management of building safety risks (including a definition of the “prescribed principles” in accordance with which APs are to operate);
    – producing safety case reports (SCRs);
    – MOR (separate from the design and construction phase MOR);
    – changes in the identity of the AP;
    – the residents’ engagement strategy;
    – the PAP having to put in place a PAP complaint procedure;
    – information management and dealing with requests for further information; and
    – contravention notices.
  4. The Higher-Risk Buildings (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023
    General: These Regulations cover the transitional provisions from the old, approved inspector regime to the new building control approver regime and how that change will impact on the existing Approved Inspectors Regulations.
    Specific: Approved inspectors will be replaced by “Registered Building Control Approvers”. The main purpose of these Regulations is mainly to amend the Building (Approved Inspectors etc.) Regulations 2010 to support the new HRB control regime; amendments made to the Building Act 1984 by the BSA 2022 provide for the new Building Safety Regulator (“BSR”) to be the only building control authority for all HRBs in England. Local authorities and approved inspectors will not be able to supervise HRB work.

Comment
These additional regulations are welcome in the construction and real estate sectors to provide much needed clarity. Over the next few weeks, many of our clients will need to gear up to comply with the detail contained in the new Regulations and how it may affect them as it involves significant change. We can help demystify the process for you, combining an explanation of the new legal duties under the regulations and BSA, together with our knowledge to date, of tackling similar situations, on a practical level, how the new legal framework applies and potential issues.

Further guidance and regulations are also expected to be published which we will keep you updated on.

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