William O’Brien is a construction, engineering and procurement solicitor at Devonshires
The government recently published a range of new regulations to inform and accompany the Building Safety Act 2022 (BSA). We have been waiting some time for this detail, too long some might say, and so the fact it has been thrown to us in one singular helping means there is a great deal to digest in a very short period. I say a very short period because the majority of the new regulations come into force on 1 October 2023, albeit with differing – and in some cases confusing – transitional arrangements for each.
“These requirements will… add tape to all but the smallest construction projects”
It is not possible in this article to go into much detail, so I will summarise the new regulations:
- The Building Safety Regulator will be the building-control authority for higher-risk buildings (HRBs) – residential buildings at least 18 metres or seven storeys in height.
- HRBs will be subject to the dutyholder and competence regime as Part 2A of the Building Regulations. For non-HRBs, a pared-down version will also apply.
- Approved inspectors will be replaced by registered building-control inspectors and approvers under a new regulatory regime. Approved inspectors and building-control approvers will enforce the dutyholder and competence regime, and oversee provision of mandatory fire-safety information to the responsible person.
- Applications for building-control approval will replace the deposit of plans with a local authority.
New dutyholder regime
The most important change may be the dutyholder and competence regime. It includes such specific obligations as the following:
- For all buildings, an obligation on the client to take all reasonable steps to satisfy themselves as to the “skills, knowledge, experience and behaviours” necessary to carry out the work to meet “all relevant requirements”. For HRBs, this includes the client keeping a written record of the steps they took to consider certain matters before a contractor’s appointment, including considering any information available regarding past misconduct.
- When applying for building-control approval for an HRB, the client must provide a competence declaration. They must confirm that the client has complied with the requirement to consider a contractor’s past misconduct, widely defined.
- The principal contractor and designer will be under a positive obligation to report anything likely to present a risk of death or serious injury to a significant number of people to the Building Safety Regulator. Such disclosures will provide whistleblower protection from criminal proceedings. Failure to do so will itself be a potential criminal offence.
Separate to the dutyholder and competence regime, the rules on the provision of fire-safety information will also change. After the person carrying out the work provides fire-safety information to the responsible person no later than completion or occupation, the responsible person must now confirm that the information provided is satisfactory.
Compliance with some of these requirements will already be prevalent in construction best practice. However, they will add tape to all but the smallest construction projects and particularly HRBs, which employers and contractors alike will struggle to understand and comply with before many come into force on 1 October 2023. The learning curve is simply vertiginous.
The transitional provisions are therefore welcome, though not straightforward.