Breaking Down the Building Safety Act - Your Questions Answered

Webinar: Breaking Down the Building Safety Act Your Questions Answered

Q: If there is no plan for a residential element to be occupied, does it still form part of the consideration of the overall property being HRB?

internal floor area that is less than 50% of the internal floor area of the largest storey vertically above or below it which is not below ground level.

A: If the building is or will be over the height and storey threshold and has 2 residential units it will be a HRB (unless it meets the exemptions) even if there are no immediate plans to occupy the residential units.

(2) Where a section is a building pursuant to regulation 4 (2) or (4), any storey directly beneath the building which is not below ground level is to be counted in determining the number of storeys the building has.

Q: Clients requirement to monitoring - is this the return of the Clerk of Works?

(3) A storey is treated as below ground level if any part of the finished surface of the ceiling of the storey is below the ground level immediately adjacent to that part of the building.

Q: Can we clarify how the 18m is measured?

A: The official measurement guidance is noted below. Do remember even if you have a building (with 2 resi units) at 17m tall but is 7 storeys this would still be classed as a HRB due to the storey criteria. Prescribed method for measuring height and counting storeys in the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 Regulation 5 sets out the method for measuring height. (1) Subject to paragraph (2), the height of a building is to be measured from ground level to the top of the floor surface of the top storey of the building (ignoring any storey which is a roof-top machinery or rooftop plant area or consists exclusively of rooftop machinery or roof-top plant rooms). Further details available here.

Q: Do basement levels come into the equation?

A: Criteria is noted as: “Regulation 6 sets out the method for counting storeys.

(1) Subject to paragraph (2), when determining the number of storeys a building has the following is to be ignored. (a) any storey which is below ground level; (b) any storey which is a roof-top machinery or roof-top plant area or consists exclusively of rooftop machinery or roof-top plant rooms; and (c) any storey consisting of a gallery with an

Regulation 1 (3) defines ground level for these Regulations. “Ground level”, in relation to a building, means (a) where the level of the surface of the ground on which the building is situated is uniform, the level of the surface of the ground immediately adjacent to the building; or (b) where the level of the surface of the ground on which the building is situated is not uniform, the level of the lowest part of the surface of the ground adjacent to the building.”

Further details are available here.

Q: Can a third party appointed by the client take on the duties of the Principal Designer?

A: Under building regulations Part 2 Section 6, paragraph 11 D is quite clear who the Principal Designer (BREGS) needs to be.

“11D. - (1) Where there is more than one contractor, or it is reasonably foreseeable that more than one contractor will be working on a project, the client must appoint in writing (a) a designer with control over the design work as the principal designer for the purposes of these regulations, and (b) a contractor with control over the building work as the principal contractor for the purposes of these regulations.

The key element here is the wording “a designer with control over the design work” and so is likely to be the Architect in most cases but could be M&E, Civil, Structural if those elements are likely to be of a larger value on the project. It may be that a third party can take the role on as PD BREGS as long as they are in control of the design work, other consultants can then be appointed as designers under a supporting role.

There is a slight variance in that 11D (2) does reference that a CDM Principal Designer can be appointed by the Client to undertake the PD BREGS role. However, under the competence duty

Building Safety Act 2022

A: The Clerk of Works would be beneficial to assist in ensuring the works are carried out to building regulations, but it is a Principal Designer’s duty to “coordinate matters relating to the design work comprised in the project so that all reasonable steps are taken to ensure that the design is such that if the building work to which the design relates were built in accordance with that design the building work would be in compliance with all relevant requirements” so it is likely to involve more checks - be that site visits, reports from a COW or regular change control monitoring during the construction phase - to be able to confidently sign the compliance declaration at completion.

11G, the person identified for the PD BREGS must also have the competencies to do so. More info available here.

Q: What are the Notice of Start requirements for refurbishment of existing tall buildings to residential use?

A: Existing Buildings where no foundation works are to take place would be when 15% of the works are completed.

Q: If a PC or PD were to leave the company midway through a project, what would be the consequence?

A: Under Regulation Part 2 Section 6, paragraph 11 M - (5) The principal designer must (b) when the principal designer’s appointment ends, no later than 28 days after the end of the appointment, give to the client a document explaining the arrangements it put in place to fulfil the duties under paragraphs (1) to (3).

The incoming PD BREGS will also need to review the document provided by the outgoing PD BREGS and sufficient time should be allowed for this to allow any shortcomings to be identified with regards to building regulations.

Q: Do the rules of a commercial building apply to residential? Are they classified as the same?

A: Yes, there is no differentiation between these types - if the works are subject to building control, the BSA applies.

Q: What is the competency level of PD? On what date in April 2024 will the transition period end?

A: Competencies will be for HRB or Non HRB (or both) - the criteria is defined in BSI PAS 8671:2022.

The transition period ends April 6 2024.

Q: What is the process to decide whether a project is HRB or Non-HRB? Who does this and at what point?

A: Existing Buildings that are a HRB should have been already registered to the BSR by the Building Owner/Client. For new projects this will need to be asked as part of the brief or through the development phase. Criteria for Determining a HRB is a building that is either 18m in height or 7 storeys and has at least 2 residential units.

Q: Did you say golden thread is HRB only?

A: Yes this is mandatory for the HRB route only - clients could request this as an extra over to the non HRB route and to be included within the project plan, but it would need the additional resource and deliverables to be agreed prior to starting.

Q: Regarding BSR decision making, are there statutory measures in place to prevent decisions taking longer than 12 weeks or will there be ‘London Fire Brigade’ type delays?

A: Currently there are no measures in place, other than appealing to the secretary of state (which will not speed up the 12 weeks) and not receiving correspondence cannot be taken as an approval.

Don’t forget any “major changes” to a HRB that affect building regulations also require a change control application which will also add programme delays to that element as works to that area must stop whilst approval is gained. If works are carried out, these will carry the risk of compliance and stop notices being implemented!

Q: Is there any more guidance on small refurbishment projects in hospitals (that need BC approval) - say replacing a fire door falling into to HRB bracket because one of the buildings on a hospital site could be a HRB (e.g. a tower)? Can the work be carried out as emergency works?

A: HRB refurbishment projects have a reduced statutory timescale from 12 to 8 weeks to pass through gateway 2 (building control approval) so the timescales are slightly less, but still onerous.

However, the works will need to be assessed for whether building regulations apply - a like for like replacement of a damaged element for example would not necessarily require building control approval. Also, existing hospitals in-occupation are exempt from the HRB route, so would not be subject to the Gateway process, and works would operate under the Non HRB pathway.

Q: We have some current projects where building regulation sign off was granted several years ago but now we are having to undertake significant remedial works and will be subject to current building regulations/safety act provisions. Can you advise on this?

A: I am assuming the project is a residential block which meets the requirements of a “Relevant” building. Remediation provisions are covered under Part 5 of the Building Safety Act and schedule 8 and applies to “relevant” buildings which are those over 11m in height and 5 Storeys.

With regards to the remediation works and building control, yes, these will need to be in line with current building regulations so - whilst the building may be flagged as a “relevant” building, it may not meet the criteria of a HRB if under 18m and 7 storeys, and if so can use the Non HRB pathway for approval. If however the building is a HRB then the gateways apply, along with the more onerous requirements for the elements to be remediated. Each project would need to be assessed individually for requirements so a one size fits all approach will not be suitable.

HELPFUL RESOURCES Navigating the Building Safety Act 2022 Building Safety Act 2022 Legislation The Building Regulations 2023 Building Control Regime for HRBs Building Safety Regulator as the Building Control Authority Change control and notifiable changes Criteria for determining whether a new building that is being designed and constructed is a “HRB” Criteria for determining whether a building is a HRB during the occupation phase of the new higher-risk regime

GET IN TOUCH WITH STEVE WOOD, LEAD PRINCIPAL DESIGNER Steve is a qualified Architectural Technologist with experience spanning both the Public and Private Sectors for over 20 years. Steve is responsible for overseeing the Principal Designer team, scheduling and monitoring workload and writing documentation and procedures to improve efficiencies in producing and managing the pre construction stage.

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Building Safety Act 2022

Building Control: An overview of the new regime

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