The Building Safety Act 2022 provides for a significant overhaul of the regulatory framework in England and Wales for the approval of higher-risk buildings, being buildings of at least 18 metres (7 storeys) which contain at least two residential units or are hospitals or care homes. In a previous Law-Now we considered draft regulations giving effect to the new framework published by the Government last year. A recently opened Government consultation has set out much more detailed proposals, some of which deviate from the draft regulations.
Government guidance issued alongside the Building Safety Act 2022 (the “Act”) stated that a new regulatory framework was to be introduced for higher-risk buildings including two new approval stages known as “Gateway 2” and “Gateway 3” – “Gateway 1” being the current planning approval process. The Government’s guidance stated that Gateways 2 and 3 “will provide rigorous inspection of building regulations requirements, ensuring that building safety is considered at each stage of design and construction”.
The Act itself does not use the term “gateway” and provides only some basic provisions around Gateway 3, leaving the detail of Gateways 2 and 3 to be set out in regulations issued under the Act. A transitional plan published by the Government in July 2021 indicates that these regulations are intended to be promulgated and brought into force within 18 months of Royal Assent to the Act, which was given on 28 April 2022.
Draft Regulations were published by the Government in October last year: the Draft Building (Higher-Risk Buildings) (England) Regulations 2022. These draft regulations set out a detailed process for Gateways 2 and 3, as well as other approvals required during the course of construction. These draft regulations were withdrawn prior to the passing of the Act and Government has now opened a consultation on the new approvals regime and published a consultation paper. The paper contains a lot of what was in the previous draft regulations, but much more detail has been provided as well as some changes.
We set out below some of the significant changes and further detail arising from the consultation paper by reference to our previous Law-Now in relation to the draft regulations. A copy of our previous Law-Now can be accessed here. For a more general overview of the Act, please see our earlier Law-Now here.
As noted in our previous Law-Now, the Government’s guidance says that this will be a stop/go point or “hard stop” where building control approval must first be obtained from the Building Safety Regulator (the “BSR”) before relevant building work starts. We noted in our earlier Law-Now that it may prove sensible to have a good understanding of what it means to ‘start work’ and the consultation paper includes a list of activities which, in the Government’s opinion, the commencement of work would usually be marked by.
The consultation paper gives further information on the anticipated process for application, review and decision. The Government says it is keen that the new hard stop gateways process does not slow down build plans and it encourages early engagement with the BSR prior to submitting an application and the provision of two weeks’ advance warning to the BSR before submitting an application.
Proposals have also been made for all applications, including all plans, documents and information, to be submitted electronically to the BSR, via a digital system but the Government also proposes that the BSR will have the discretion to accept applications to be submitted in a different way such as through paper copies where applicants cannot submit plans and documents electronically.
The consultation paper also lists of the kinds of information which it expects will be required as part of an application and recognises that there may be legitimate scenarios where some information required is unavailable and waiting for it could delay construction. In these scenarios, the Government is proposing that the BSR will be able to allow a ‘staged approach’ to building control approval for construction.
Review and decision
We noted in our previous Law-Now that it was not clear how long the BSR will have to make a decision on an application but the consultation paper is clear in proposing it to be within 12 weeks of the application or such longer period as the applicant agrees to.
There is more detail around the review and decision process and what happens if the BSR does not approve within the 12 week time-limit. In those circumstances, absent an agreed extension the applicant has 6 weeks to apply directly to the Secretary of State under s.30A of the Building Act (a new provision not yet in force). If this does not happen, the proposal is that the approval application is deemed to have been rejected. This is bound to have implications for negotiations over an extension. For example, if the BSR indicates that it needs a further 8 weeks to consider approval, the applicant may be put in a difficult situation because if it declines the extension, it will be forced to apply under s.30A where the timings are even less clear.
Whereas, previously, it appeared that an applicant must give at least 2 days’ notice to commence work, that period is now at least five working days.
The consultation paper also indicates that if an application is approved, the BSR will agree a bespoke inspection schedule with the applicant and the BSR will need to be notified at these stages for inspection to take place.
Our previous Law-Now discussed the process and requirements around changes and that “major changes” will be subject to requirements which are not dissimilar to the initial Gateway 2 process but where the BSR has 6 weeks, not 12 weeks, to decide. That period seems to have moved from 4 weeks to 6 weeks. The consultation paper, as expected, includes a list of what will constitute a “major change”.
The requirement for approval of a “major change” is intended to be another “hard stop” and work will not be able to continue until approval is received. If the BSR does not approve within the required 6 week period, the applicant may again apply under s.30A of the Building Act.
Certain more minor changes, referred to as “notifiable changes”, will also require approval, but a shorter approval period of 10 business days will apply. A list of such changes is set out in the consultation paper. Approval for these changes will not be a “hard stop” and the change can be made once the 10 business day period has elapsed without any objection being received from the BSR.
As noted above, it is expected now that the BSR will carry out inspections at the agreed stages but inspections could also be carried out without notice.
The consultation paper also outlines the proposed introduction of requirements for the mandatory reporting of safety occurrences during the design, construction and occupation stages of higher-risk buildings and for dutyholders to need to establish and operate an effective mandatory occurrence reporting system.
As noted in our earlier Law-Now, the Government’s guidance says that this will also be a “hard stop” i.e. building control approval must be obtained from the BSR before registering and commencing occupation of a higher-risk building.
The consultation paper makes it clear that the proposed period for the BSR to make a decision on an application is to be within 12 weeks of the application or such longer period as the applicant agrees to. Like with gateway 2, that was not clear before. The 12 week period now seems as if it will also apply to applications for only part of a building whereas previously it looked as if those may be fast-tracked to 6 weeks.
Like for gateway 2, the consultation lists the kinds of information which it expects will be required to be submitted to the BSR as part of an application and gives the same detail around the review and decision process and what happens if the BSR does not approve within the 12-week time-limit (including the s.30A procedure).
It is now clear that a gateway 3 application can only be made once completion is achieved and full as-built plans will need to be submitted with the application. It is also noted that completion may include the completion of snagging work (this is something out for consultation). As discussed in our earlier Law-Now, these requirements could have a significant impact on timings given that a further 12+ weeks will be needed for the application to be determined, the certificate obtained and the building registered.
Impact on procurement
Our previous Law-Now noted the likely the impact of these new requirements on construction procurement, both traditional and design and build, and on issues such as practical completion, extensions of time and additional costs. The consultation paper bears out these concerns and, if anything, demonstrates that a certain amount of inflexibility in the new approvals regime is precisely what is intended.