Long-awaited clarity received on building control for higher-risk buildings in England

The government published the response to last year's consultation on the new building control regime for higher-risk buildings (HRBs) and the associated regulations, the Buildings (Higher-Risk Buildings Procedures) Regulations 2023 in August.

These regulations bring some much needed clarity on how the building control regime for HRBs is changing. However, a great deal of uncertainty and nervousness remains in the industry about the impact on HRB projects, particularly as regards delays to programmes. There is likely to be a flurry of projects seeking to benefit from the transitional arrangements rather than become subject to the new regime.

This Insight focuses on the impact of the regulations on new HRBs but it is worthwhile noting that they contain provisions relating to works to existing HRBs as well.

Transitional arrangements

The transitional arrangements apply to projects for new HRBs where:

• before 1 October 2023 an initial notice has been given to a local authority or full plans have been deposited with a local authority; and
• the works are sufficiently progressed before 6 April 2024.

For projects that satisfy the transitional arrangements, the Building Safety Regulator will not become the building control body for the project.

The definition of "sufficiently progressed" is now earlier than was proposed in the consultation. For new HRB developments it now means that "the pouring of concrete for the permanent placement of the trench, pad or raft foundations, or the permanent placement of piling for that building has started". This has been welcomed by the industry as many projects were striving to meet the requirements of the transitional arrangements, with lawyers trying to draft contracts covering what happened if a live project did or did not meet the requirements.

Clients, being the person for whom the project is carried out, should be aware that there are various notice requirements to comply with in order to satisfy the transitional arrangements set out in the regulations. This includes an obligation to give notice to the regulator not more than five working days after the date on which the works are considered to be sufficiently progressed.

For development sites with multiple buildings, each of the buildings on the site must separately satisfy the transitional requirements. If they do not, a client will be faced with two different building control regimes on the site.

If a project is using an Approved Inspector to confirm compliance with Building Regulations, the Approved Inspector must become a registered building control approver by 6 April 2024.

Gateway 2 – building control applications

As expected, Gateway 2 is the stop/go stage which must be passed before construction of an HRB can begin.

Approval must be sought from the regulator before the works start. Applications for approval can be made by the client or by a consultant/contractor on behalf of the client. If applications are not made by the client they must be accompanied by a statement signed by the client confirming that they agree to the application being made and that the information contained in the application is correct.

The regulations emphasise that the time limits for determining an application for Gateway 2 approval relate to a valid application. Where a valid application is made, the regulator must determine the application within 12 weeks of receipt.

If an application is invalid, the regulator must notify the applicant. There is no fixed time period within which it must do so – although the consultation states that the regulator must inform the applicant "as soon as reasonably practicable".

The regulations do not spell out the consequences of what happens if the regulator fails to make a determination within the 12 week period. The consultation response makes it clear that there is no deemed approval of an application in such cases and the client's route is to appeal to the Secretary of State requesting them to consider the application.

In practice, a close working relationship between an applicant and the regulator will be beneficial and should hopefully help minimise delays in securing building control approval. Early engagement with the regulator will help to ensure that, when submitted, the application contains all the information that it needs to review.

Clients should also note the additional notification requirements relating to Gateway 2. At least five working days' notice must be given before the day on which work is to start on site (notifying the regulator of the client's intention to start the work and the date on which the work is to start).

Under the Building Regulations 2010, notice must also be given to the regulator not more than five working days after the day on which the work is regarded as commenced. The definition of "commenced" is not the same as the definition of "sufficiently progressed" for the transition arrangements.

Change control

The regulations implement the new change control regime for HRBs, with specific onerous obligation applying to any "controlled changes" during the life of a project.

There are two categories of controlled change: notifiable changes and major changes. A client must notify the regulator of a notifiable change before the work relating to that change starts, but does not need the regulator's approval. Conversely where there is a major change, approval from the regulator must be obtained before the work relating to that change starts.

Where approval is required, the regulator must determine an application for approval within six weeks of receiving a valid application.  

The regulations include a long list of items which will be considered to be "major changes", many of which will be considered normal design development or value engineering in construction projects. As such, the need to seek approval and to accommodate a six week approval process in a construction programme is likely to be disruptive.

While the government has committed to producing further guidance on changes, the new process will mean that the design and specification of a project will need to be much more advanced than is often currently the case when a project starts on site. Two-stage tendering with a pre-construction services agreement preceding a design and build contract is likely to become even more prevalent – or could there even be a resurgence of traditional procurement?

It will be an obligation of the principal contractor to create and maintain a change control log to record information in respect of changes.

'Golden Thread' and handover of information to the relevant person

The client will be required to arrange for an electronic facility to be created and maintained to hold the golden thread information. The client must ensure that all people involved with the design or construction of an HRB have access to it.

The golden thread and other specified information concerning the building's utilities must be handed from the client to the relevant person no later than the date on which the HRB construction work is completed. The relevant person must provide written notice to the client confirming receipt of the information, that they are able to access it and that the information provided is sufficient to enable them to understand, operate and maintain the building and the fire safety systems in it.

Gateway 3 – completion certificate applications

Gateway 3 is the stage where a client must apply for a completion certificate from the regulator. An HRB cannot be occupied until this has been provided. This certificate is separate from registration of the HRB and the HRB must also be registered with the regulator before the building can be occupied.

The application process for Gateway 3 is similar to Gateway 2, with the key difference being the regulator has an eight week period within which to determine a valid application. Again, there will be no deemed approval if the regulator fails to respond within the statutory time period.

Staying close to the regulator throughout the project will be important and could assist smooth sailing through the Gateway 3 process. The consultation response makes it clear that the government intends the process to allow for submission of information throughout construction, rather than waiting until the end of the project. Clients are therefore going to need to ensure that there is sufficient resource on a project, both in their own team and in their contractor's team, to provide information in a timely fashion. Interrogation of a contractor's ability to do so will become an ever more important part of a tender process.

An application for Gateway 3 approval can be made when the "building work" relating to the HRB has been completed. It is likely that an application could be made before an entire project is complete. For example, external landscaping works unrelated to the HRB building work would not need to be complete. It is also likely that an application can be made before completion of all internal fitting out work (such as painting or flooring). Exactly when an application can be made will need to be considered on a case by case basis.

How the industry responds to this eight week period at the end of the project remains to be seen. Will contractors adapt their programmes to ensure that an application for Gateway 3 approval can be made as far in advance of practical completion of the whole project as possible?

While the building work concerning the HRB needs to be complete before an application can be made, other unrelated works (for example, minor fitting out, external works) do not need to be complete. If they are not completed, the eight week period will cause delay to occupation and countless discussions on projects as to who takes that risk. What does it mean for insurance of the building? Who is going to be responsible for security of the building? Will Gateway 3 certificates become as common a requirement of practical completion under a building contract as Building Control certificates currently are?

The industry can only hope that the regulator will be able to cope with the applications and work with the industry to minimise delay because it is not in anyone's interest for there to be multiple unoccupied HRBs left empty for eight weeks after completion.

Osborne Clarke comment

The regulations and consultation response finally provide some much needed clarity, albeit at late notice with only around six weeks between their date of publication and the date on which they come into force.

There are few major differences between the published regulations and what was expected from the consultation, but that does not mean that it will be any less disruptive. Developers will have concerns about whether the regulator is going to be adequately resourced and capable of making decisions within the statutory time periods. Costs are likely to go up as the impact of potential delays caused by the gateways, change control and information gathering are factored in to developments. It is unlikely that there will be much enthusiasm among developers to pioneer the new regime.