Higher-risk buildings regulations: surviving the new regime 

by Ben Smith, Senior Associate; and Samantha Jones (39 Essex Chambers)

On 1 October 2023, a new building control regime1 was brought into force for higher-risk buildings with the promulgation of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the “Regulations”) and the Building Regulations etc (Amendment) (England Regulations 2023). The Regulations implement Part 3 of the Building Safety Act 2022 (“the BSA”). A number of significant changes have been brought about as a result of the new Regulations. In particular, the Regulations instituted new obligations for dutyholders, a new “Gateway regime”, a new change management regime2 and the requirement to generate and store a “golden thread” of information.3 Ben Smith and Samantha Jones from 39 Essex Chambers explain further. 

The aim of the new regime in the post-Grenfell landscape is to ensure that building safety risks in higher-risk buildings are considered at each stage of a building’s design and construction and introduces a step change in the way the construction industry delivers projects and their longer-term management. 

Unsurprisingly, the new regime brings with it a number of challenges and risks. This article explores the challenges and risks and suggests strategies for managing them. 

Applicability 

Gateways

The new Gateway regime applies to buildings that meet the height requirement and the higher-risk building work (“HRB work”) definition. 

As you may be aware, a building is a higher-risk building if it is at least 18 metres in height or has at least seven storeys and contains at least two residential units or a building that is a care home or a hospital that meets the same height requirement.4 The Government has recently announced that military barracks will also be included within the definition of a higher-risk building through an amendment to the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 introduced in the Higher-Risk Buildings (Keeping and Provision of Information etc) (England) Regulations (albeit there is currently no timescale for this change, or any suggested transitional provisions).  

The new regime only applies to those buildings undergoing HRB work, namely a new construction of a higher-risk building, work to an existing building that causes it to become a higher-risk building (such as adding storeys to a building that was previously below 18 metres), or a building that undergoes a material change of use such that it becomes a higher-risk building (for example, the conversion of an 18-metre office block to residential accommodation).  The regime does not otherwise apply to existing higher-risk buildings.

Dutyholders

In contrast, the new dutyholder provisions, which was brought into effect by the Building Regulations etc (Amendment) (England Regulations 2023), apply to all building works, not just HRB work. The new dutyholder regime is intended to improve accountability throughout the life cycle of a project and defines new dutyholders as the client, principal designer, other designers, principal contractor, and other contractors.

Transitional Provisions

The new regime is subject to certain transitional provisions. The transitional provisions provide that, if before 1 October 2023:

• the Initial notice has been given to a local authority and accepted; or
• full plans have been deposited with a local authority. 

and

• for new higher-risk buildings, works are “sufficiently progressed” before 6 April 2024. Works are “sufficiently progressed” when the pouring of concrete for the permanent placement of trench, pad or raft foundations or the permanent placement of piling has started; and
• for work to existing buildings, the work has started before 6 April 2024. 

If the transitional provisions are met, then Parts 2 to 6 of the Regulations, which include the provisions relating to Gateways, change control, golden thread, etc., do not apply to the building works. 

Dutyholders

The duties on the various dutyholders include the following:

The client:

• must make suitable arrangements for planning, managing and monitoring a project (including allocation of sufficient time and other resources) so as to ensure the design and construction of the building complies with all relevant requirements; and 
• must also enable the designers and contractors cooperate with each other and provide for a periodic review of the building work.

The principal contractor should:

• take responsibility for the site;
• make arrangements to monitor the building work (with records) to ensure that the work complies all relevant requirements of the Building Regulations;
• ensure that all working on the project co-operate, communicate and co-ordinate works with the other dutyholders; and

• manage flow of information to make sure correct recipients receive appropriate information.

The principal designer:

• must not start work unless satisfied the client is aware of their duties for the building works to be carried out;
• should continually monitor competencies to ensure they maintain required competence for the specific project; 
• should plan, manage, and monitor the design works during the design phase;
• should co-operate with the client, principal contractor and others; and 
• should make arrangements to monitor the building work (with records) to ensure that the design, if built, would comply with all relevant requirements of the Building Regulations.

The client, principal designer and principal contractor can be the same individual/ organisation, subject to having appropriate competency requirements. 

The new dutyholder provisions aim to ensure the parties have the relevant competencies to understand and carry out their roles and adopt a co-operative approach to achieving compliance with Building Regulations. This is part of the wider shift towards parties (dutyholders) being responsible for compliance with the Building Regulations, rather than reliance on approved inspectors.

The new Gateways

Gateway 2

Gateway 2 replaces the “deposit of plans” stage of the building control process. Under the new Gateway, before any person starts HRB work or a stage of HRB work, the client must submit an application for building control approval to the Building Safety Regulator (“the Regulator”).5 Gateway 2 is a hard stop in that construction cannot begin until three conditions are met: 

1. The Regulator has granted building control approval for the work; 
2. Any requirements specified by the Regulator are fulfilled; and
3. The Regulator has been notified of the start date of the works.6

Regulation 4 (for new higher-risk buildings) and regulation 12 (for existing higher-risk buildings) specify a long list of information that must be included in the application. The client must give notice to the Regulator of their intention to start work with the start date at least five working days in advance.7

In terms of timescales and the process for reaching its decision, for new higher-risk buildings, the Regulator has 12 weeks from the date of receipt of a valid application to make a decision although the timeframe can be extended if agreed in writing between the Regulator and the applicant.8 For existing higher-risk buildings, the Regulator has eight weeks to make a decision.9 In reality, given Gateway 2 is a hard stop to construction works commencing, if the Regulator needs more time, the parties will have no choice but to agree to it. 

In reaching its decision, the Regulator is required to consult with the enforcing authority for the proposed higher-risk building and, where the project includes provision for drainage and waste disposal (under H4 of Schedule 1 of the 2010 Building Regulations), the sewerage undertaker.10

The Regulator must grant the application unless the application was not valid in that it did not include all of the information specified by regulation 4, was not sufficiently detailed such that the Regulator could not determine if the work would contravene the building regulations and/or the application shows that the work would contravene applicable requirements of the building regulations.11

Gateway 3

The purpose of Gateway 3 is for the Regulator to assess the as-built building and whether the work has been carried out in accordance with Building Regulations. It is also to ensure that no part of a higher-risk building is occupied before it is safe. Accordingly, Gateway 3 operates as another hard stop as the building cannot be occupied or registered with the Regulator until the Regulator has granted the completion certificate.

In terms of demonstrating compliance with Gateway 3, once HRB work or a stage of HRB work on a higher-risk building has been “completed”, an application must be made in writing to the Regulator for a completion certificate.12 However, while Gateway 3 replaces the completion phase that existed in the former building control regime, unhelpfully, there is no definition of the meaning of the phrase “completed” in the Regulations. It is anticipated that the Regulator or the Government will issue guidance, but currently this remains unclear. 

The requirements for the application are set out in regulation 40 of the Regulations. Significantly, the regulation requires that the client signs and submits a statement confirming that, to the best of their knowledge, the higher-risk building as-built complies with all applicable requirements of the Building Regulations.13 It also requires the client and the “relevant person”, for example, the principal designer and/or principal contractor, to sign a statement confirming that they have provided the information prescribed by regulation 38 of the Regulations, namely the “BFLO information” and the “golden thread information”.14

Further, the principal contractor or the principal designer is required to submit and sign a compliance declaration confirming that they have fulfilled their duties under Part 2A of the Building Regulations.15 This is significant for two reasons: (i) it signifies a clear shift from approved inspectors determining compliance with the Building Regulations (the old regime) to the parties being required to understand their roles, act in compliance with the Building Regulations and self-certify; and, (ii) if the parties give misleading information to the Regulator by signing the relevant statement/certificate the sanction includes a prison sentence with a maximum term of two years’ imprisonment and/or a fine.16

In terms of timescales and the process for reaching its decision, the Regulator has eight weeks (or longer as agreed in writing) to determine an application and, within that time, they must inspect the building and give the enforcing authority and, where relevant, the sewerage undertaker, 15 working days to consider the application.17 In reality, given Gateway 3 is a hard stop to occupation of the building, if the Regulator needs more time, the parties will have no choice but to agree to it. 

The Regulator must approve a completion certificate application where it is satisfied, after taking all reasonable steps, that the HRB work complied with the Building Regulations, the required documents have been submitted and information specified by regulation 38 is complete and has been provided.18

What happens if the Regulator gets it wrong (Right of Review and Appeal)?

For both Gateway 2 and 3 applications, the Regulator must give reasons if it rejects the application.19 There is a right of review of the Regulator’s decision to reject the application.20 The applicant must give notice under section 25(2) of the BSA to the Regulator in writing and has 21 days to make an application, which begins on the day after the day on which the decision was notified to the applicant.21 An applicant can only appeal a decision once the decision has been reviewed provided that the appeal is made within 21 days after the day on which the regulator notified the applicant of its review decision.22

Insights and strategies

It is helpful that 17 months after the BSA has been in force, the Government has finally set out the detail of the new building control regime for HRB work to higher-risk buildings. The new regime certainly increases regulatory oversight of these residential buildings, but it remains to be seen how the regulations will play out in practice. In terms of managing the resultant risks and challenges, we suggest parties consider the following:

• Review the new regulations with the design/construction teams and consider the potential implications on the time, cost, and organisation levels for a typical project and how these might be programmed and costed when tendering for new projects.
• Review your current contract drafting and consider if it adequately addresses the potential risks associated with Gateways 2 and 3 and the dutyholder provisions, for example:
• Delays by the Regulator in approving applications at Gateway 2 and Gateway 3;
• Liability for delays by the Regulator if, for example, this is due to a deficiency in the application, and
• Management of change. 
• Review your supply chain contracts and consider if they are back-to-back as far as possible to ensure risks are flowed down where appropriate. 
• Consider having a discussion with your PI insurer regarding the steps you are taking to comply with the new regime as this may (positively) affect the risk profile of your business. 

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• 1. A shorter version of this article originally appeared in The Law Society Gazette on 24 November 2023.
• 2. See “The Building Safety Regulator and its role in the higher-risk building regime” by Huw Wilkins at pages 30-31.
• 3. See The Building (Higher Risk Buildings Procedures) (England) Regulations 2023. A detailed discussion of the golden thread requirements is outside the scope of this article.
• 4. Section 120D of Building Act 1984 read with Regulation 2 of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.
• 5. See regulations 3 to 7 of the Regulations for new higher-risk buildings and regulations 10 to 17 for existing higher-risk buildings.
• 6. Regulation 3 of the Regulations.
• 7. Regulation 9 of the Regulations. The client must also give notice to the Regulator not more than 5 working days after the day on which the HRB work is to be regarded as commenced (regulation 9(3) of the Regulations)
• 8. Regulation 5 of the Regulations
• 9. Regulation 13 of the Regulations
• 10. Regulation 6 and 14 of the Regulations
• 11. Regulation 7 and 15 of the Regulations
• 12. Regulation 40 of the Regulations
• 13. Regulation 40(1)(e) of the Regulations
• 14. Regulation 40(1)(f) of the Regulations
• 15. Regulation 40(5) of the Regulations
• 16. Sections 76 and 77 of the Building Safety Act 2022.
• 17. Regulations 41 to 43 of the Regulations.
• 18. Regulation 44 of the Regulations.
• 19. Regulation 7(5) and 15(5) of the Regulations.
• 20. Section 25 of the building Safety Act 2022 and regulation 48 of the Regulations.
• 21. Ibid.
• 22. Section 26 of the building Safety Act 2022 and section 49 of the Regulations.