February 2024 Building Safety Update

Building Safety Update: some key changes coming up on 6 April 2024

A number of significant changes relating to the building regulations and building control processes for both "higher-risk" and "non-higher risk" building work came into force on 1 October 2023. New building work of any kind has therefore been subject to the relevant new regulations and rules applicable to such work for almost 6 months.   

6 April 2024 is a further key date relating to various changes in the building control regime. Before 6 April 2024:

• Both higher-risk and non-higher risk building work that was in train before 1 October 2023 must have complied with further conditions in order to continue to be exempt from the new regulations;

• All those in the building control profession must have complied with new competency and registration requirements (and from 6 April 2024 the role of "approved inspector" will be abolished (and replaced with a new concept of Registered Building Control Approver)).  There is concern in the industry that local authorities and private providers may struggle to meet this deadline.  

Further, on 6 April 2024, new commencement and other regulations will come into force to implement the creation of the new RBCA role etc, and also bring into force some other sections of the Building Safety Act 2022, such as that allowing the Government to begin to implement the "building safety levy" process. 

We summarise the above developments in further detail below.

Final "transitional provisions" requirements for building work in train before 1 October 2023 - are you on track?

The new regulations provide that some building work / projects that were already underway as at 1 October 2023 would be exempt from some of the new rules if various criteria were met.  Those criteria include that certain steps have to be achieved before 6 April 2024 in order for the projects to continue to be exempt after that date. We set out below a reminder of the key exemption requirements; and what will happen if the deadline cannot be met.

• For presently "exempt" higher-risk building work:

  • the work must be subject to either an initial notice or deposit of full plans that was issued/accepted before 1 October 2023 and which has not been rejected or lapsed since;

  • the work must be "sufficiently progressed" (see further Schedule 3, paragraph 1(6) of the Gateways Regulations for what this means) and notice of the same must be given to the local authority (and a copy to any approved inspector, if relevant) within 5 working days of the work meeting that test (with such notice to be received by the local authority before 6 April 2024).

    • By 6 March 2024, local authorities will also be required to give the Building Safety Regulator various details of all relevant projects for which they have a deposit of full plans before 1 October 2023 where no notice that work has "sufficiently progressed" has so far been received. (While it appears that such notice can still be given to the local authority between 6 March and 6 April 2024, this process may be designed to give a degree of fore-warning to the Building Safety Regulator about which local-authority projects, at least, may no longer be subject to the exemption provisions from 6 April). 

  • further, for work where an approved inspector is providing the building control function (a) the approved inspector must have registered as a Registered Building Control Approver (RCBA) before 6 April 2024 (see below); and (b) the Initial Notice must not be cancelled or lapse at any time (whether before or after 6 April 2024). 

If presently exempt higher-risk building work does not meet the remaining exemption criteria by 6 April 2024, then among other things, from 6 April 2024 the project must transfer to the Building Safety Regulator as its building control authority, and must comply with the new "Dutyholder" Regulations and (subject to various specific transfer provisions) with the new "Gateways" Regulations relating to new and more stringent building control processes for higher-risk building work.  

• For presently "exempt" non-higher risk building work:

• the work must be subject to an initial notice, building notice or deposit of full plans that was issued/accepted before 1 October 2023 and which has not been rejected since;

• the work must have "started" before 6 April 2024.

If the non-higher risk work is not started by 6 April 2024, then new "Dutyholder regulations" and certain other changes to the building control process brought in by the building regulations changes on 1 October 2023 will apply to the works from 6 April 2024 onwards. 

New registered building control roles

One of the key planks of the Building Safety Act 2022 has to been to reform the building control profession.  

Before 1 October 2023, those carrying out building works of any kind could choose whether to use either local authorities or private providers (i.e. "approved inspectors") to perform the building control function.

Since 1 October 2023 (unless the works were already in train and meet certain exceptions, as noted above) the Building Safety Regulator is or will now be the building control authority for all "higher-risk" building work in England. This has removed the ability for developers or D&B contractors to choose whether to use local authority building control, or a private provider, for higher-risk building work.   

While the local authority or approved inspectors can still be used for "non-higher risk" building work (or for exempted higher-risk building work), the building control system at this level is also being overhauled.  Among other things, on the private provider front, the concept of an "approved inspector" is going to be abolished and replaced with the concept of a "registered building control approver".   Various new regulations are going to come into force on 6 April 2024 to, among other things, replace the current approved inspector regulations and to bring into force amendments to the Building Act 1984 to reflect such changes. These new regulations in part bring over the changes recently made on 1 October 2023 to the building control process (as it was applied via approved inspectors) and also introduce some new requirements.

There are also new registration and competency processes for RBCAs and for individual building control inspectors (whether working for a local authority or an RCBA). The registration and competency process provides for persons/entities to be designated as suitably qualified to deal with various building work categories or "types" across a scale (primarily relating to height and use criteria).  Registration has been possible since 1 October 2023, but will be mandatory from 6 April 2024.

Concern has recently been expressed within the industry, for instance by the LABC CEO (as discussed in an article in Construction News), and by RICS, that local authority building control functions and approved inspectors may not be able to meet the various requirements to register either before 6 April 2024, or at all.  

If that is the case, then key impacts could be as follows:

• A shortage - both at local authority and private provider level - of appropriately qualified registered building control inspectors and RBCAs able to take on new building control applications for non-higher risk building work from 6 April 2024.

• For currently "exempted" "higher-risk" building work in progress, where an approved inspector is presently performing the building control function, if that approved inspector does not register as an RCBA before 6 April 2024 then - regardless of what stage the works are at (i.e. even if work has "sufficiently progressed") - from 6 April 2024 the initial notice will automatically lapse and the project will have to be transferred to the Building Safety Regulator and comply with the relevant new regulatory requirements, as noted above.

• For current "non-higher-risk" building work where an initial notice has been issued before 6 April 2024, if the approved inspector does not (or is unable to) register as a "suitably qualified" Approver regarding that work (meaning that the work must be of a type that is within the scope of the registration of the RBCA) before 6 April 2024  then the building work in question must be completed and a final certificate must be issued by 1 October 2024. If that does not occur, the current initial notice will cease to be in force automatically on that date.  (There are also special provisions that will apply if the approver was able to obtain registration before 6 April 2024 for some types of work covered by an initial notice, but not all of it). 

• For any current building work where the local authority is performing the building control function, there may be delays to the process if there are fewer staff that have met relevant registration requirements and thus available to work.

The building safety levy

Further Building Safety Act 2022 commencement regulations are going to bring into force various further BSA sections on 6 April 2024, including the "Building Safety Levy" provision.  Section 58 BSA amends the Building Act 1984 to introduce a new section (s105C Building Act 1984) that allows the Government formally to make regulations to create a building safety levy to be paid by certain persons for the purpose of meeting *"building safety expenditure"* (being "expenditure" by DLUHC (whether before or after the BSA came into force) in providing financial assistance to persons (whether by grant, loan or otherwise) for the purpose of enabling them to improve the safety of persons in or about buildings in England).

The Government has previously consulted on the levy, with an outcome paper published. A further consultation process also has also recently been undertaken regarding various technical matters relating to the levy, which closed on 20 February 2024.  The Government has indicated that once it has issued its response to this second consultation, it intends to make formal regulations regarding the levy.  Bringing s58 BSA into force is the first step in that process.