A BRIEF GUIDE TO THE BUILDING SAFETY ACT 2022
INTRODUCTION
In July 2020, the Government introduced the Draft Building Safety Bill, aimed at advancing comprehensive reforms to current legislation and addressing concerns identified by Dame Judith Hackitt DBE as part of her independent review following the Grenfell tragedy. The Building Safety Bill successfully gained Royal Assent, officially becoming the Building Safety Act of 2022 on 28th April 2022. Since then, numerous consultations have been undertaken that have underlined the substantial implications for the industry, including the new Building Control regime and wider changes to the Building Regulations. The Government published key secondary legislation on 17th August 2023, the impact of which will be felt across all sectors and by all disciplines involved in the design and construction of building works, including Clients and building owners. At the heart of the changes is a legal obligation for all individuals and organisations to be competent to ensure compliance with the Building Regulations in both design and construction. This obligation applies across all sectors, even the smallest of residential alterations, whether the Designer and/or Contractor are legally responsible for compliance, whether in a formal contract or not. The Building Safety Act 2022 stands as the primary legislative framework that legally establishes building safety standards throughout the design, construction and occupation phases. While the Act’s practical implementation will depend on detailed regulations, often referred to as Statutory Instruments (for example the Building Act and Building Regulations), these secondary legislations include specific provisions for enforcement. This document has been produced as a brief guide to the Act and its implications. We hope it will assist in understanding the new legislation and provide you with some clarity and guidance on your duties to meet the requirements.
The Building Safety Act 2022 is Criminal Law. As such, where works or procedures do not comply with the Building Regulations, enforcement under the legislation could result in criminal proceedings against individuals who are proven to be in contravention of the legislation.
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KEY FACTS DOES THE BUILDING SAFETY ACT 2022 ONLY APPLY TO HIGHER-RISK BUILDINGS (HRB S)? No. The Building Safety Act 2022 applies to all new buildings, although it does include a number of specific additional requirements for those classed as Higher-Risk Buildings.
18M IN HEIGHT OR 7 STOREYS
WHAT IS A “HIGHER-RISK BUILDING”? Higher-Risk Buildings are those in England that are classed as being: •
at least 18 metres in height; or
•
at least 7 storeys high; and
•
which contain at least 2 residential units, including hospitals, care homes and student accommodation.
Hotels, prisons and military accommodation are not classed as Higher-Risk Buildings.
The Building Safety Act 2022 introduces revolutionary reforms to enhance resident rights, powers and protections, enhancing the safety of homes nationwide. It also provides explicit guidelines for the construction and management of HRBs, prioritizing the safety and peace of mind of their occupants. The new legislation represents the most fundamental reform of regulations for building safety in living memory. It reforms existing legislation, while also bringing in new requirements through secondary legislation. The regulatory changes will lead to clear accountability for Clients, Contractors and Designers. This means that from 1st October 2023, new buildings that fall within the regime and are completed after this date must be registered before the building is occupied.
The Building Safety Act 2022 has now passed into its transitionary stage. This means that if a Building Regulations application has not been submitted and accepted by a local authority before 1st October 2023, it will now fall under the new Act.
WHEN DOES THE NEW LEGISLATION COME INTO EFFECT? Where applications have been submitted, the project must be ‘sufficiently progressed’ before 6th April 2024 to continue to benefit from the Act’s transitionary provisions and not fall under the control of the Act. The term ‘sufficiently progressed’ means either the pouring of concrete for permanent placement of foundations or the piling associated with the building or, if there are no foundation works associated with the project, that relevant work has been undertaken.
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NEW ROLES AND RESPONSIBILITIES The implementation of the Building Safety Act 2022 has introduced a number of new regulatory structures as well as new duty holders under the regulations, each with their own roles and responsibilities.
THE BUILDING SAFETY REGULATOR
THE BUILDING CONTROL BODY
THE ACCOUNTABLE PERSON
The Health & Safety Executive (HSE) has been named as the new Building Safety Regulator (BSR). The Building Safety Regulator is a department within the Health & Safety Executive but is a standalone entity in relation to its functions. It has three core functions: •
To oversee the safety and standards of all buildings
•
To assist and encourage competence among the built environment industry and building control professionals.
•
To implement the new, more stringent, regulatory regime for buildings which meets the Higher-Risk Building (HRB) definition in the Building Safety Act, including in occupation.
From 1st October 2023, the Building Safety Regulator (BSR) becomes the Building Control Body for Higher-Risk Buildings. It is also responsible for independently overseeing Building Control Bodies (BCBs) and their professionals, which will apply to BCBs in local authorities as well as registered Building Control Approvers (RBCAs). The BSR keeps a register of all Building Inspectors who have been assessed to carry out regulated Building Control activities and have successfully applied to become a Registered Building Inspector. This includes a separate register of private sector businesses that carry out Building Control work, which replaces the Approved Inspector Register run by the Construction Industry Council Approved Inspectors Register (CICAIR).
The specific roles and responsibilities of the ‘Accountable Person’ are defined within the new Act. The Accountable Person is responsible for overseeing and/or managing the building in occupation. They are accountable for registering the building with the Building Safety Regulator, regularly logging information about the building and reviewing risk assessments. All existing High-Risk Buildings should have been registered with the Building Safety Regulator before 1st October 2023. If this has not been undertaken, then the Accountable Person is in breach of their duties under the Act. The BSR will now start the process of requesting Safety Case Reports for consideration and the invitations will be sent on a priority basis and the whole exercise is expected to last 5 years and then repeat every 5 years.
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OTHER DUTY HOLDERS Definitive responsibilities have been assigned to the full range of duty holders involved in a building project, including the Client, the Principal Designer, the Designer and the Principal Contractor, or the Contractor. Effectively, anyone who may introduce risk through their contribution to a construction or refurbishment project – either as an individual or via a multi-disciplinary service provider – will be expected to manage that risk and its associated compliance demands. The full scope of responsibilities can be found on the HSE website: https://www.hse.gov.uk/building-safety/roles.htm
WHAT ARE THE NEW RESPONSIBILITIES FOR CLIENTS UNDER THE NEW REGIME? Under the new requirements, the Client is the person responsible for commissioning the building work. They have overall control of the project and essentially they must ensure that suitable arrangements are made for planning, managing and monitoring the project to ensure compliance with the Building Regulations. They must also ensure that these arrangements are maintained throughout the life of the project. If the project involves a Higher-Risk Building, then as they have overall control over the project, it is appropriate that they are ultimately responsible for the ‘Golden Thread’ information (please read on for more information about the Golden Thread).
Regardless of the type of building work being undertaken if, at any time after a Building Control application is made or a Building Notice is given, the Client for a project changes, the new Client must give notice to the relevant authority. In addition, if at any time after a Building Control Approval application is made or a Building Notice is given, the Client changes or appoints a new Principal Designer (or sole or Lead Designer) the client must give notice to the relevant authority. Where the Client is a Domestic Client, the outgoing duty holder must provide information to the Domestic Client within 5 calendar days of their appointment ending, which must be provided to the person appointed on the date of appointment or as soon as practicable after that date. The person appointed then gives notice to the relevant authority (with a statement explaining it is on behalf of a Domestic Client). Although the Client can delegate tasks, they cannot delegate responsibilities and must ensure that those they appoint have the right competencies to take on these roles. For most projects the Client is unlikely to have sufficient competence to carry out this duty and, therefore, most Client duties will be placed on those undertaking the design work and the building work.
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WHAT ARE THE DUTIES FOR DESIGNERS, CONTRACTORS, PRINCIPAL DESIGNERS AND PRINCIPAL CONTRACTORS? The Building Regulations place duties on designers (any person, including a Client, Contractor or other person who, in the course of a business, carries out any design work, or arranges for, or instructs, any person under their control to do so) and contractors (any person, including a Client, but not a Domestic Client, who carries out, manages or controls any building work). As with the Construction (Design and Management) Regulations 2015 (CDM), Designers must not start work unless satisfied that the Client is aware of their duties for the building work to which the design relates under all relevant requirements. It is therefore important to understand the provisions for all building work that form the basis of an appointment. In addition to the duties already placed on designers under the CDM Regulations, designers are now responsible for planning, managing and monitoring design work to ensure it complies with the Building Regulations if built accordingly. They must also advise the Principal Designer or the Client if the work they are designing is considered Higher-Risk Building work. The Principal Designer is responsible for planning, managing and overseeing design work during the design phase. They must also coordinate all design-related matters to ensure that if construction follows the designs, it will comply with the Building Regulations.
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: 1. A Designer with control over the design work as the Principal Designer for the purposes of these regulations. 2. A Contractor with control over the building work as the Principal Contractor for the purposes of these regulations. These roles are also referred to as the Principal Duty Holders. A Principal Designer must be appointed in writing before the construction phase begins, or before submitting an application for Building Control Approval for a Higher-Risk Building. For Domestic Clients, the Client duties will be carried out by the Contractor (where there is only one contractor for the project), the Principal Contractor or the Principal Designer (where the Principal Designer agrees to fulfil those duties with the Client, agreed in writing). If a Domestic Client fails to make the appointments, the Designer in control of the design phase of the project (most likely to be an Architect) is the Principal Designer, as under the current CDM Regulations. Organisations may also act as Principal Designers subject to necessary organisational capability, meaning possessing a robust management system and a team of staff members with relevant competence. Where a Designer ‘takes over’ from another Principal Designer, due diligence will be required to ensure that all duties up to that point have been discharged in accordance with requirements and that the building design and building works are compliant with the Building Regulations.
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COMPETENCY The new Building Safety Act 2022 makes it clear that it is the responsibility of Clients, Designers and Contractors to be suitably competent to ensure compliance with the Building Regulations. For Principal Designers and Contractors this responsibility for competence also extends to compliance with the Act. The use of the term Principal Designer has caused some confusion with the CDM role. The Principal Designer as defined by the Building Safety Act 2022, must be a competent entity or individual in a position to plan, manage and monitor the whole design process with adequate capacity to undertake such a role. In most cases it is likely that the Architect, as the Lead Designer, will be responsible for the role of Principal Designer.
It is worth remembering that the intent of the CDM Regulations was also for the Lead Designer to take on the Principal Designer role. Although this has not become industry standard practice, there is a clear preference for the Principal Designer to be the same individual, discharging both duties. In due course, it is expected that all Chartered Designers will be required to demonstrate their competency by applying to, and securing a place on, the RIBA or CIAT Principal Designer Registers.
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HIGHER-RISK BUILDINGS
THE GOLDEN THREAD A defining element of the Building Safety Act 2022 is a ‘Golden Thread’ of information which, in basic terms, will act as a readily accessible digital audit trail throughout the lifecycle of a building. It is the Client’s responsibility to ensure that the the Golden Thread is produced and maintained. Although the Act does not provide any specific guidance about how to collect and store data, effective, collaborative whole-lifecycle Building Information Modelling (BIM) solutions will be essential to the success of this core aspect of the Act. The Act defines the golden thread as ‘the information that allows you to understand a building and the steps needed to keep both the building and people safe, now and in the future’, so the system that is used to host the data should assist the Accountable Person to update easily and add to the information over the life of the building. When a building is being developed, information must be kept that describes the building and shows how it complies with regulations. Embracing digital processes across the supply chain can only be a positive move. While the Golden Thread currently only applies to Higher-Risk Buildings, eventually - as this approach is commonly adopted - it seems likely that everyone will have a consistent digital process for maintaining records for health, safety and quality management. In short, everyone working within the construction industry will need to embrace the practices of the Golden Thread now, so a new gold standard can be established for the industry.
KEPT DIGITALLY
A BUILDING’S SINGLE SOURCE OF TRUTH
YOUR BUILDING INFORMATION MUST BE ...
KEPT SECURELY
AVAILABLE TO PEOPLE WHO NEED THE INFORMATION TO DO A JOB
PRESENTED IN A WAY THAT PEOPLE CAN USE IT
AVAILABLE WHEN THE PERSON NEEDS THE INFORMATION
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GATEWAYS GATEWAYS - THE NEW SAFETY CHECKPOINTS The Building Safety Act 2022 introduces the Gateway approach for Higher-Risk Buildings (HRBs). There will be no choice of Building Control provider and all building works, new builds, extensions and refurbishments will be subject to the control of the Building Safety Regulator (BSR) and the Gateway Approach. Acting as ‘checkpoints’, the Gateways apply to construction, refurbishment, or any works in HigherRisk Buildings. Throughout this process, the Building Safety Regulator will ask duty holders to evidence how competence has been established, encompassing a company’s own individual and organisational capabilities, together with those of their supply chain.
GATEWAY 1
GATEWAY 2
GATEWAY 3
PLANNING
PRE-CONSTRUCTION
PRE-OCCUPATION
GATEWAY 1 - PLANNING The requirement to provide a Fire Statement at Gateway 1 as part of the Planning Application for Higher-Risk Buildings has been in place since 1st August 2021. Any developer seeking Planning Permission for an HRB must submit a comprehensive Fire and Structural Safety Report. This should make clear how the proposed design will meet the strict safety standards of the Building Safety Act 2022. GATEWAY 2 - PRE-CONSTRUCTION Replacing the Building Control ‘deposit of plans’ stage, this occurs prior to construction work. It is against the law to start on site until the Building Safety Regulator confirms that the plans meet the demands of the Building Regulations. Applications to the BSR are chargeable at a rate of £144 per hour worked for BSR staff, plus any costs to BSR of relevant authorities and third parties. This is an ‘uncapped’ rate which, therefore, represents a financial risk to the Client. Applicants should make certain that the proposals are fully compliant with the Building Regulations or further charges may be incurred through subsequent iterative reviews with the BSR. Full details of the BSR Charging Scheme can be found on the Health and Safety Executive (HSE) website: https://www.hse.gov.uk/building-safety/charging-scheme.htm The BSR has a 12-week period to approve or reject Building Control Applications for HRBs, or to approve subject to fulfilment of certain requirements and the application process is subject to fees set out in the BSR Charging Scheme. It is worth noting that the 12 weeks does not allow for development of the design in response to non-compliances found. The information that needs to be provided to pass through Gateway 2 far exceeds traditional statutory expectations and, if rejected, they must provide reasons for rejection. Complex schemes can be submitted in phases, but this is at the discretion of the BSR. The application requirements are set out in detail in Regulations 4 and 12 and Schedule 1 of the HRB Regulations and, apart from a description of the proposed work and plans (at least 1:1250 scale) showing size, position of building and relationship to adjoining boundaries, must include the documents referred to below:
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A COMPETENCE DECLARATION FROM THE CLIENT/EMPLOYER This is to confirm that the Client is satisfied that the Principal Designer, Principal Contractor and any other person appointed to carry out work are competent and provide a written record of the steps they have taken to be satisfied with their competence. THE CONSTRUCTION CONTROL PLAN This is to describe how building work will be managed to maintain compliance with the Building Regulations throughout design and construction. THE CHANGE CONTROL PLAN Showing a clear change control process and is a tool for keeping an accurate record of all changes and for showing how the impact of changes has been fully considered and recorded. BUILDING REGULATIONS COMPLIANCE STATEMENT Setting out the approach taken in designing the Higher-Risk Building to ensure compliance with the Building Regulations and an explanation of why such an approach is appropriate. This is described in the HSE Guidance as ‘a summary that signposts the regulator to relevant documents in your application to each of the functional requirements’. FIRE AND EMERGENCY FILE To ensure that strategies for managing building safety risks, once the building is occupied, have been considered from early design stages and should include the measures, strategies, and policies that the owner of the completed HRB should adopt to ensure safe evacuation in an emergency. MANDATORY OCCURRENCE REPORTING PLAN STATEMENT Describing the mandatory occurrence reporting system to log safety occurrences (mainly relating to fire and structural safety). PARTIAL COMPLETION STRATEGY If applicable, and where it is planned from the outset that completing and occupying the building will be undertaken in separate stages. CLIENT STATEMENT If the application is made by someone other than the Client/Employer.
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GATEWAY 3 - PRE-OCCUPATION Gateway 3 is to ensure that buildings are correctly built, and information has been provided to the Accountable Person to allow the building to be occupied safely. To allow occupation the Contractor has to apply to the Building Safety Regulator (BSR) for the issue of a Completion Certificate. The BSR has up to 12 weeks to respond to this application. When the Completion Certificate has been issued, the Accountable Person can apply to register the building; the building can only be legally occupied once this is done. Within 6 months of registration the Accountable Person will be invited to submit a Safety Management System for consideration; it is expected this document will be based on the Golden Thread. CONTROLLING CHANGE DURING CONSTRUCTION Changes to approved building work for Higher-Risk Buildings will be monitored by the BSR through a system of change control applications. •
Major changes, which are currently undefined, will require approval from the BSR before the change can be implemented. The BSR should approve or reject such changes within a proposed 4 weeks.
•
A Notifiable Change (again, as yet undefined) would also need to be referred to the BSR prior to being carried out, although it is anticipated that the works will be able to proceed unless there is objection within a proposed 14-day timeframe.
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Records of the controlled change, including a compliance explanation of how the change meets Building Regulations, will need to be maintained. The categorisation of major and notifiable changes will be subject to consultation now that the Building Safety Act 2022 is in place.
The information provided is correct to the best of our knowledge at this time; we assume no responsibility or liability for any errors or omissions in the content. January 2024
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