The Building Safety Regulator and its role in the higher-risk building regime

by Huw Wilkins, Senior Associate

The Building Safety Act 2022 ( “BSA”) came into force in April 2022, ushering in a new regulatory regime for building safety in the wake of the Grenfell Fire. In this article, Huw Wilkins looks at two core elements of that new regulatory regime: the new Building Safety Regulator (the “Regulator”), and its role in the design and construction of higher-risk buildings.

The Building Safety Regulator

A key recommendation of Dame Judith Hackitt’s 2018 review of the building industry was the creation of a new national regulator, tasked with promoting and enforcing safety in the built environment. That recommendation has become a cornerstone of the BSA.  

The BSA names the Health and Safety Executive (“HSE”) as the new Regulator,1 although the government is looking at the possibility of replacing the HSE as the regulator for high-rise residential buildings with a new body, should the Grenfell Inquiry recommend sweeping reform.2

Under the BSA, the Regulator has three main functions:

1. Overseeing the safety and standards of all buildings;
2. Helping and encouraging the built environment industry and building control professionals to improve their competence; and
3. Leading the implementation of the new regulatory framework for higher-risk buildings.

This article focuses on the last of those functions and considers the Regulator’s role in approving design and construction work and its powers of enforcement in the event that a party does not comply with the new regime.

Higher-risk buildings

Part 3 of the BSA defines higher-risk buildings as those which are at least 18 metres in height, or with at least seven storeys, and which contain two or more dwellings.3 The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 extend that definition by providing that care homes and hospitals also fall within the definition of higher-risk buildings (if they meet the height/number of storeys requirements in the BSA).

For higher-risk buildings, the new Regulator alone will enforce the provisions of the BSA and any regulations thereunder. 

The higher-risk building regime

All higher-risk buildings will be subject to Part 3 of the BSA, which imposes new obligations in respect of the design, construction and refurbishment of those buildings. In August 2023, the Government published the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the “HRB Regulatory Regulations”) which implement Part 3 of the BSA. 

The HRB Regulatory Regulations set out the details of the building control regime for higher-risk buildings, specifying the procedural building regulation requirements when a new higher-risk building is being designed and constructed or when building work is being done to an existing higher-risk building. The new regime came into force on 1 October 2023, although there is a transitional period between October 2023 and April 2024.4

The Regulator’s Approval Role

The Regulator will be involved throughout the design and construction of a new higher-risk building, or when work is being done to an existing higher-risk building (or, indeed, if work is being done to an existing building, following the completion of which that building will fall within the definition of a higher-risk building):

• The Regulator is required to approve applications before work starts (known as Gateway 2) within 12 weeks of receiving a valid application.5
• The Regulator can require a client to notify it when a specified point of the work has been reached and not to cover up specified work for a specified period.6
• Certain changes must be notified to the Regulator before works start (“notifiable changes”) whilst the most significant changes (“major changes”) must be approved by the Regulator before works can start. The Regulator has six weeks from receiving a valid application for building control approval to approve a major change.7 Where the Regulator does not respond within the requisite time (as may be extended by written agreement), the Regulations do not provide for approval by default, meaning that a contractor will have to wait until it obtains the Regulator’s approval before it is able to start works in respect of the major change. 
• Where, during the construction phase, (i) an aspect of the design relating to the structural integrity or fire safety of a higher-risk building would give rise to a risk of a significant number of deaths, or serious injury to a significant number of people, or (ii) an incident or situation relating to the structural integrity or fire safety of a higher-risk building occurs that would be likely to present a risk of a significant number of deaths, or serious injury to a significant number of people; then a principal dutyholder must, on becoming aware of the occurrence, notify the Regulator of the safety occurrence by the quickest practicable means without undue delay and then provide a written report to the Regulator within 10 days.
• Issue a completion certificate in respect of work to a higher-risk building (known as Gateway 3) within eight weeks of receiving a valid completion certificate application.

Parties will need to grapple with the Regulator’s role in approving work at the various stages for design and construction. It will be imperative for parties to identify who will make the requisite applications to the Regulator and to deal with the risk of the Regulator’s actions (or inaction) holding up the design and/or construction process.

The Regulator’s enforcement role

In addition to its role in approving works, in relation to any building or proposed building for which the Regulator is the building control authority, the Regulator may take such steps as it considers appropriate to check compliance with all applicable requirements of the building regulations, including:8

(a) Requiring information;

(b) Requiring the laying open of building work for inspection by the Regulator; and 

(c) Requiring an inspection to be undertaken and the record of the inspection provided.

There are also two forms of notice available to the Regulator:

Compliance Notices: If the Regulator considers that a person appears to have contravened, be contravening or be likely to contravene building regulations, they can issue a Compliance Notice which effectively requires the recipient to take specified steps within a specified period (to ensure compliance).

Stop Notices: These prohibit, either immediately or from a specified time, the carrying out of specified work. They can be issued to a person who appears to be in control of any work if it appears that it:

• contravenes specific building regulations;
• contravenes a Compliance Notice; or
• contravenes a building regulation which can cause serious harm - meaning that there is a risk of serious harm to people in or around the building if the contravention is not corrected.

A person who, without reasonable excuse, contravenes these notices commits a criminal offence, punishable by and fine and/or up to two years in prison.

The HSE has stated that in intends the Regulator to deliver evidence-based, proportionate, and targeted engagement and interventions with dutyholders. The HSE will publish an Enforcement Policy Statement which will set out the key enforcement principles in respect of the Regulator’s enforcement powers, regulatory tools and sanctions, and how they will be applied. Those principles are:

• Proportionality in how the Regulator applies the law and secures compliance;
• Targeting of enforcement action;
• Consistency of the Regulator’s enforcement approach;
• Transparency about how the Regulator operates and what stakeholders can expect; and
• Accountability for its actions.

Given the enforcement powers available to the Regulator, all those working on higher-risk buildings will be interested to see how the Regulator intends to exercise those powers.

Conclusion

The BSA came into force in April 2022. It took almost 16 months to publish the Regulations setting out the new regime for higher-risk buildings and the transitional period comes to an end in April 2024. There is comparatively little time for those within the industry to get to grips with the Regulations. However, these are an important set of Regulations with potentially significant consequences – both in terms of potential contractual liability (for example, in terms of risk of delay arising from the approval process) and regulatory sanctions (including fines and/or custodial sentences).

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• 1. See section 2.
• 2. See amendment after clause 214 of the Levelling-up and Regeneration Bill which empowers the Secretary of State to do so.
• 3. Note that a slightly different definition of “higher-risk buildings” applies for the purposes of the “in-occupation” provisions in Part 4 of the Building Safety Act. For example, hospitals and care homes will not be required to meet the requirements of the “in-occupation” obligations.
• 4. The provisions relating to the transition period are set out in Schedule 3 of the HRB Regulatory Regulations.
• 5. Regulation 3-7 (for work on new higher-risk buildings) and Regulations 11-15 (for work on existing higher-risk buildings).
• 6. Regulation 8 (for work on new higher-risk buildings) and Regulations 16 (for work on existing higher-risk buildings).
• 7. Regulation 18.
• 8. Regulation 46.