29 September, 2023
Established in response to the devastating Grenfell Tower fire in 2017, the Building Safety Act 2022 (the BSA) introduces sweeping reforms that directly affect the construction industry. A cornerstone of these reforms is the establishment of a new Building Safety Regulator (the BSR). This article delves into the impact of the BSR on the construction sector and beyond.
The BSR is an independent regulator within the Health and Safety Executive which is tasked with overseeing the safety and performance standards of buildings. The new watchdog is not a symbolic gesture; it is empowered to enforce the regulations which underpin the BSA and has the power to levy fines, halt construction, and even instigate criminal proceedings for non-compliance.
Ultimately, the BSA is tasked with regulating with what are described as higher risk buildings (HRBs); its goal being to effectively create and manage what Dame Hackett referred to in the post-Grenfell report as a 'golden thread' - a digital record of all HRBs.
There are separate definitions of higher risk buildings within the BSA depending on whether the building is pre, during or post construction. However, broadly speaking HRB refers to a building which is 18m or 7 storeys (or higher) which contains two or more residential units (Parts 3 & 4 of the BSA).
From the contractor's perspective, the BSA introduces multiple gateways that construction projects relating to HRBs which must be passed through to ensure building safety from conception through to occupancy.
What is referred to a Gateway 1 was introduced via The Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021 in August 2021. To pass through this gateway a developer must display to the BSR and planning authorities that safety risks relating to the development have been considered - which includes the submission of a fire statement to "support the consideration of information on fire safety matters as they relate to land use planning matters."
The BSA introduces a second gateway which will replace the building control deposit plans stage. From 01 October 2023, developers of HRBs will be required to submit detailed design plans and specifications to the BSR for approval. During this process the BSR will assess the construction materials, methodologies, and safety features to ensure that they comply with all relevant standards.
For the development to progress through Gateway 3, the BSR is required carry out final inspection(s) of the works. If the BSR is satisfied that the building work complies with all applicable building regulations, it will issue a Building Assurance Certificate (BAC). This BSR has 12 weeks to determine the application.
The issuance of the BAC will act as a trigger for the registration of the HRB with the BSR; the BSA establishing an offence for HRBs to be occupied without registration. While not necessarily of relevance to many constructions firms, this will be application to developer / owners.
This post completion requirement places an obligation on the BSR to act as the registrar for all HRBs -with the requirement to register applicable to all HRBs including those already constructed.
This registration process commenced in April 2023 with the Principle Accountable Person (PAP) provided with a six-month window to do so. Failure to have registered a HRB before 30 September 2023 could expose the owner / manager of the HRB to enforcement actions, including issuing compliance notices and in some cases, prosecution.
The PAP (which is defined in Part 4 of the BSA) is a clearly accountable person for an HRB. It is anticipated that in most circumstances the PAP will be an organisation such as a commonhold association, local authority, or registered provider of social housing. Where there are multiple individuals or organisations that own a HRB, that person / organisation who holds responsibility for maintenance of common parts shall be deemed to be the PAP. If the PAP is an organisation, an obligation exists for the organisation to appoint a single point of contact for the BSR.
As part of the registration process, the PAP must submit structure and fire safety information regarding the HRB. The PAP is also responsible for having ensure that all accountable persons have:
The BSA and establishment of the BSR represent a seismic shift in the UK construction industry. The key to navigating this new regulatory landscape is adaptability. Construction firms that can pivot to embrace these changes stand to gain not just in terms of compliance but also in market reputation and long-term sustainability.
However, there are concerns over the format used in relation to progress through the gateways and time will tell where proforma documentation is required.
One major issue which can be foreseen is the 12 weeks period during which the BSR must inspect the HRB. This third gateway process suggests that the application for sign-off by the regulator can only happen when the building is complete, and that the possible 12-week period for sign-off happens after that point. Developers must therefore ensure that practical completion dates (and potential payment schedules) align with these constraints.
For more information contact Jonny Hutchings in our Construction & Infrastructure department via email or phone on 01257 240821. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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