Changes to the Building Control Process as the transitional periods ends

Since 1 October 2023 wide changes have been made to procedural building regulations, and further changes to the building control process for “higher-risk buildings” (please see below in respect of the definition of this term) have been put in place as a result of secondary legislation brought in under the Building Safety Act 2022 (the BSA).

As a reminder, the BSA and subsequent legislation that has stemmed from it, were introduced after the Grenfell Disaster for the purposes of, amongst other things, creating lasting change and making clear how residential buildings should be constructed, maintained and made safe.  Many of the detailed provisions in the BSA are being implemented through a prolonged programme of secondary legislation.

One of the key changes introduced by secondary legislation to the BSA is a new building control process for building work creating, or carried out in, buildings which are defined as higher-risk buildings – these are, (amongst other similar criteria), multi-occupied residential buildings, hospitals and care homes that are at least 18 metres in height or have at least seven storeys. The BSA and subsequent legislation set out the use criteria and how height and number of storeys are determined and whether a building therefore falls within the definition of a higher-risk building.

As a result of the new building control process, works to a higher-risk building or, works which create a higher-risk building, will be overseen by the Building Safety Regulator (the Regulator) as part of a new building control process.  Any new building work creating, or carried out in, a higher-risk building can no longer be overseen by local authority or private sector building control.  The Regulator and new building control process is a more stringent regime.

In addition to this new stringent regime of building control for higher-risk buildings, wider changes to the building regulations for all buildings have been introduced as a result of the BSA.

6 April 2024 is a key date in respect of the transition to the new regime and new building control processes, and is particularly important for anyone who may be under the impression that certain works in relation to higher-risk buildings do not fall within the new regime introduced on 1 October 2023 as they pre-date it.

The following points summarise parts of the Government’s own circular provided to Local Government Chief Executives, Heads of Building Control Approved Inspectors, The Chief Fire Officer Fire and Rescue Authorities which outline the changes and transitional provisions introduced by the legislation for higher-risk buildings:

Transitional Arrangements – “Sufficiently Progressed” works

• As noted above, any new building work creating, or carried out in, a higher-risk building (higher-risk work) can no longer be overseen by local authority or private sector building control and will be overseen by the Regulator. The legislation related to the BSA includes transitional arrangements that determine the rules and procedures that higher-risk work will need to follow if a building control body has already been notified of the plans prior to October 2023. If the transitional arrangements apply, the higher-risk work can be continued to be overseen by the local authority or private sector building control until such time as the works are complete and the work does not transfer to the Regulator
• For transitional arrangements to apply to higher-risk work on 1 October 2023:

1. an initial notice in connection with the higher-risk work must have been given to a local authority (and not been rejected) or
2. full plans in connection with the higher-risk work must have been deposited with a local authority before 1 October 2023.

• To continue to benefit from the transitional arrangements, and not transition to the new building control process on and after 6 April 2024, the following must apply:

1. The higher-risk work must satisfy the definition of being “sufficiently progressed” (explained below) before that date.  In addition, the person carrying out the higher-risk work must notify the local authority no more than five days after the point the higher-risk work is sufficiently progressed and before 6 April 2024.
2. The approved inspector overseeing the existing higher-risk work must have registered as a registered building control approver so that they can continue to oversee the higher-risk work.

• “Sufficiently progressed” means:
  • For construction of a new higher-risk buildings – when the pouring of concrete for the permanent placement of the trench, pad or raft foundations, or permanent piling for the building has started
  • For work to existing higher-risk buildings – when that work has “started” or where the building work consists of a material change of use, when work to that effect has “started”. The Government’s circular does not explicitly set out what constitutes starting works.
• Therefore, where higher-risk work overseen by the local authority on 1 October 2023 has not sufficiently progressed by 6 April 2024, or the approved inspector has failed to register by 6 April 2024, the higher-risk work will transfer to the new Regulator on 6 April 2024, and the said-to-be more stringent regime in terms of building control requirements shall apply.
• The Health and Safety Executive (HSE) has published two pieces of guidance on the transitional building control regime for higher-risk buildings (HRBs) in England:
  • Transitional building control approval for new higher-risk buildings (2 April 2024); and
  • Transitional building control approval for work on existing higher-risk buildings (2 April 2024).

These documents outline the various scenarios that may arise under the transitional regime, which is extremely complex.

Wider Changes To Buildings Regulations

• As noted above, wider amendments to building regulations were introduced by the BSA – these include (but are not limited to) the following:
• that building control approval on new building work lapses automatically after three years in respect of any work which does not meet the definition in the BSA of having been “commenced” – this applies for work overseen by a local authority, private sector building control or the Regulator
• the introduction of “dutyholders” i.e. those involved in the procurement, design and undertaking of building work, and duties are imposed on them. The dutyholders will be clients, principal designers, designers, principal contractors and contractors who have a duty to ensure that the work complies with all relevant building regulations. In higher-risk buildings the dutyholders will also need to demonstrate to the Regulator how they intend to comply, how they are complying, and how they have complied with their duties, including submitting a competence declaration to the Regulator when requesting a competition certificate for the work
• in the new regime, dutyholders are required to notify the relevant building control body twice. This is in comparison to the current building control process which only requires one notification when work is commenced.  Under the new regime, a notification must be submitted to the relevant building control body at least two or five working days before dutyholders intend to “start” work (dependent on whether the building is a higher-risk building or not). A further notification must be submitted within five working days of the work having been “commenced”.  The regulations do not prescribe what constitutes “starting” work but do define “commencement” of work.
• The new requirements relating to lapse of plans, dutyholder and competence regulations, and start and commencement notices, referred to above, apply even to plans or initial notices submitted and agreed before 1 October 2023, if building work has not “started” on site by 6 April 2024. Therefore, if building work has not started by 6 April 2024 it is likely to fall in the more stringent building control regime. To reiterate, the regulations do not prescribe what constitutes “starting work”, but Government advise that they expect starting work to “consist of the undertaking of any element of permanent notifiable building work as described in the application or initial notice”.

6 April 2024 is therefore an important date for all parties involved in the construction or alteration of buildings, with the tightening of building control for even those who do not have higher-risk buildings. Building owners, and those hoping to benefit from the building control regime in place prior to October 2023 must therefore be aware of this date and the implications of it.

Please do get in touch with the author of the article or any member of the Real Estate team if you have any questions relating to the information in this article.