Part 2: Building control, gateways and dutyholders

In this, the second part of our series looking at the key provisions of the Building Safety Act 2022 (the Act), we summarise some of the key changes to the building control regime in England. Most of the relevant provisions can be found in Part 3 of the Act, but not all of those are fully in force and not all relevant regulations have been made. Consequently, the position may change as more regulations are made and provisions come into force.

To read "Part 1: Introduction, Relevance and Regulator", click here. As explained in Part 1, getting the right definitions is key to understanding the Act. The starting point is to clarify the definition of "Higher-Risk Building" or "HRB".

Key definition: Higher-Risk Building (HRB)

For the purposes of Part 3 of the Act, "Higher-Risk Building" or "HRB" is defined as a building in England that is:

• at least 18 metres in height or has at least seven storeys; and
• contains at least two residential units. A residential unit is a dwelling or any other unit of living accommodation.

Care homes and hospitals are included. Various properties are excluded including (but not limited to) those consisting entirely of a secure residential institution, hotel or military barracks. 

There are, however, detailed provisions for determining:

• what constitutes a building; and
• the height and storeys of a building.

Notwithstanding those provisions, professional advice may still be needed to understand how these apply to any given building or buildings.

Going forward, there is scope for the definition of "HRB" to be modified and/or new categories of HRB introduced. This is deliberate and intended to allow the BSR and the Secretary of State to flex the regime to apply to new circumstances (including new building safety risks) in the future. 

Background to the current building control regime and proposed changes

Many of the provisions of Part 3 relate to building regulations. The building regulations regime is separate from, and in addition to, the planning regime and listed buildings regime. 

The Act will:

• introduce a new, more stringent pathway for building regulations approval for HRBs – the gateway regime (see below);
• introduce a new dutyholder regime (see below);
• make change to the existing approval routes, including changes in terminology and some roles. This will likely necessitate changes to legal documentation, particularly that which relates to development;
• establish the BSR as having ultimate regulatory oversight of building control and task it with improving standards;
• remove approval by default. Where work is not commenced within three years, any building control approval (for example, building control approvals, initial notices and plan certificates) will automatically lapse. Previously, after three years the Local Authority Building Control (LABC) would have the power to revoke approval but would have to take positive action to do so. Legal documentation will need to reflect this and parties will want to be more diligent in ensuring that work is commenced within the relevant timeframes; 
• introduce a legal definition of "commencement" for the purposes of building regulations (see below); and
• tighten up the enforcement regime (see below).

In most cases, secondary legislation setting out the details of these changes is awaited.

It is anticipated that there will be a transitional period of six months following implementation of these changes. Those who have already notified a building control body of their plans will be allowed to continue under the old building control rules, provided they commence work within the transitional period (see below). 

The gateway regime

The term "gateway" does not appear in the Act itself. The gateway regime will only apply to HRBs as defined in Part 3. 

Where a new HRB is being constructed, proposals suggest the three gateways will comprise:

• Gateway 1 – the planning gateway (already in force)

This requires certain applications for planning permission to include a fire safety statement and for the Health and Safety Executive to be a statutory consultee. Gateway 1 was implemented by previous secondary planning legislation rather than via the Act.

• Gateway 2 – before construction begins

An application will need to be submitted electronically to the BSR, together with the required supporting documentation. The BSR will engage a multi-disciplinary team to consider the application – for example, consulting and providing information to the relevant fire and rescue authority. The BSR will have 12 weeks from the date of the application (plus any agreed extensions) to decide whether to approve, give conditional approval or reject. It will be an offence for work to commence before the BSR has given Gateway 2 approval (hard stop 1). If approval is given, the BSR will operate a bespoke inspection and enforcement regime for the works.

The applicant must give notice of commencement at least five working days before the day it intends to commence onsite.

During construction, any major deviations from the original proposals will also require the BSR's approval before being undertaken (hard stop 2). Other changes will need to be notified to the BSR.

• Gateway 3 – completion certificate application

Notice that works are complete will need to be given to the BSR. An application will then need to be submitted electronically to the BSR, together with the required information. The BSR will have 12 weeks from the date of the application (plus any agreed extensions) to decide whether to:

• approve and issue a completion certificate;
• agree an extension of time for the applicant to provide additional information or correct errors; or
• reject the application. 

It will be an offence to allow the residential elements of the HRB to be occupied prior to the Gateway 3 completion certificate being issued (hard stop 3) and (if applicable) the HRB being registered with the BSR in accordance with the requirements of Part 4.

To mitigate the hard stops built into the gateway regime, a non-determination procedure will be introduced allowing applicants to apply to the Secretary of State for a decision where the BSR has otherwise failed to reach one within the prescribed time limits. If an applicant does not invoke the non-determination procedure in these circumstances, the relevant BSR application will be deemed refused.

On multi-building sites comprising the construction of some HRBs and some non-HRBs, it will be open to the applicant and the BSR to agree that the BSR will accept building control applications relating to all works (i.e. assume responsibility for the non-HRBs). If agreed, a Regulator's Notice would need to be served on the LABC which would have limited discretion to reject that notice. Where the BSR is acting as the building control authority for a non-HRB, the additional requirements for HRBs will not apply to the non-HRB.

Dutyholder regime

Part 3 will introduce a dutyholder regime with competence requirements. Early indications are that this will apply to all notifiable works pursuant to building regulations (so extending beyond HRBs). Where the work involves an HRB, stricter requirements will apply.

The regime is intended to regulate and hold to account those involved in the design and construction of new buildings and the refurbishment of existing buildings.

The dutyholder roles (client, principal designer, principal contractor, designer and contractor) will mirror those under the Construction (Design and Management) Regulations 2015 (CDM Regulations) but will involve different responsibilities. Responsibilities will range from duties of cooperation to create and maintain golden thread information (discussed in Part 3 of this series) to investigating and making competency declarations about those engaged on a project.

For HRBs within scope of Part 4 of the Act, the dutyholder regime will mature into the accountable persons regime.

Legal definition of "commencement" for building regulations

There is currently no legal definition of (as opposed to guidance on) "commencement" for the purposes of the building regulations. Knowing whether work has commenced will be critical to understanding whether approval has lapsed and/or whether work benefits from transitional provisions. Consequently, a legal definition of "commencement" is to be introduced. It will likely incorporate two key changes to previous practice:

• on multi-building sites, commencement will be judged on a building-by-building basis. So, if there are three buildings (A, B and C) and work has only commenced on building B, the commencement condition will not have been satisfied for buildings A and C (contrary to the current position); and
• in relation to the construction/creation of new buildings, the plan is to move away from existing guidance where the creation of foundation trenches may be sufficient towards requiring more substantial commencement. One possibility is completion of the sub-structure and walls up to damp proof course level. (Note: different definitions of "commencement" would apply to the various types of works to existing buildings.)

Enforcement of building regulations

Enforcement of building regulations will be tightened.

• Going forward, both the BSR and LABC will be empowered to serve enforcement notices (requiring work that does not comply with building regulations to be altered or removed within 28 days). The deadline for service will be extended from 12 months to 10 years from completion of the work that is in breach.
• New compliance and stop notices will be introduced enabling the LABC and/or BSR to require work to be corrected by a given date or for work to cease until non-compliance is addressed. Failure to comply with either will amount to a criminal offence.
• Prosecution rights will be extended to the BSR and the claim will be expanded to include not just breach of building regulations, but also any individual requirements imposed under building regulations (for example, dutyholder duties).

Key points

• Determining the height of a building (and even what constitutes a building) may not be straightforward and professional advice may be required.
• The Act contains sufficient flexibility to allow the Secretary of State and the BSR to introduce new categories of higher-risk buildings in the future. 
• Changes to the building control regime (for example, changes in terminology and roles) will need to be reflected in legal documentation.
• With the removal of building control approval by default, parties will want to be more diligent in ensuring works are completed by the relevant deadlines. This may need to be reflected in legal documentation. Relevant to this will be the new definition of "commencement".
• Parties with works pending will also want to pay particular attention to any transitional provisions if they want to benefit from the previous building control rules. They may want to include obligations on contractors to ensure that the conditions for qualifying are met. Failure to qualify under the transitional provisions in relation to HRBs could lead to building work being subject to the new, more stringent gateway regime. 
• As and when the definition of "commencement" (for building control purposes) is settled, parties with ongoing or prospective works will want to review their chances of qualifying for the transitional provisions. 
• The BSR will have longer under the gateway regime to consider building control applications than it does under the current regime. Those longer periods will need to be factored into construction/development timetables.
• The need to clear Gateway 3 before residential occupation can commence will be a major change. It may be necessary to build this into any handover provisions and/or the definition of "practical completion" for HRBs. Query whether commercial occupiers will demand parity (i.e. that they too cannot be required to take occupation until Gateway 3 is cleared). 
• The introduction of hard stops in the gateway regime will need to be built into construction/development timetables. Documentation may need to oblige parties to pursue the non-determination procedure to avoid refusal by default. 
• The pros and cons of having the BSR as the sole building control authority on a multi-building site involving at least one HRB will need to be weighed up and, if desired, the parties will need to ensure a Regulator's Notice is served before any applications are made. 
• Where the same party is fulfilling the same roles under the CDM Regulations and the dutyholder provisions of the Act, consideration will need to be given as to whether separate appointments would be desirable.
• Going forward, it is anticipated that due diligence of building control will become more intense as the regime is tightened and enforcement action strengthened by the Act.

Look out for Part 3 of this series "Accountable Persons, Registration and the Golden Thread" which summarises the key provisions of Part 4 of the Act (relating to the regime for management of occupied HRBs).