Regulator now Building Control Authority for higher-risk buildings in England

Developers must also apply to the Building Safety Regulator for building control approval before starting building work on any projects involving higher-risk buildings.

The Building Safety Act 2022 places new legal responsibilities on those who are involved in the design and construction and occupation of high-risk buildings. This means that everyone undertaking building work will need to be able to demonstrate compliance with the law and, what’s more, provide hard evidence of this if challenged.

This will ensure more stringent project oversight, with clear accountability for the safety of high-risk buildings throughout their entire lifecycle.

In addition to the Building Safety Act, the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 came into force on 17 August. They set out the building control processes that apply to all high-risk building projects.

The new regulations deliver the recommendations made by Dame Judith Hackitt in the report entitled ‘Building a Safer Future’. They cover the technical detail underpinning the new and somewhat more stringent regime for the design and construction of high-risk buildings as well as the details of the new in-occupation safety regime for these structures.

Remit of the regulator

From 1 October, the Building Safety Regulator will carry out its function as the Building Control Authority through teams that include a registered building inspector and any other specialists required to assess a building control application submission. These will be called multi-disciplinary teams.

Further, the Building Safety Regulator will lead these teams to ensure effective regulatory decisions, guide the structure of an inspection schedule and input to any requirements (ie conditions) that may be applied to an approval.

This is not a new regime in terms of the assessment of plans and site inspections, but it’s most certainly a new method of delivery.

To strengthen regulatory oversight, building work on higher-risk buildings will have to pass through a rigorous process consisting of three gateway points. Building Safety Regulator approval must be obtained before the commencement of building work, ahead of any significant changes made during construction and also when building work is completed.

It will be deemed an offence to start building work without the Building Safety Regulator’s approval, while the regulator harbours enforcement powers to take action where proven breaches occur.

On the gateways

Planning Gateway 1

Fire safety is considered as part of the planning permission process. Since August 2021, the local planning authority has been required to consult the Health and Safety Executive on planning applications for high-risk buildings.

Gateway 2

Building work on new high-risk buildings can only begin after the developer has building control approval from the Building Safety Regulator. There is a 12-week determination period from the receipt of an application. Any change to this will be agreed between the Building Safety Regulator and the client.

Key documentation required, and which is new to the regime, includes a competence declaration, a construction control plan, a change control plan, a mandatory occurrence reporting plan, a Building Regulations compliance statement, a fire and emergency file and a partial completion strategy (where and when relevant).

Once approved, the Building Safety Regulator will carry out inspections during construction and agree a bespoke inspection schedule with the applicant. This could involve site inspections, requesting information such as change control log(s) or other evidence of Building Regulations compliance.

The Building Safety Regulator will be able to undertake tests or take samples of building materials by cutting into or otherwise laying open building work and, further, will be able to stop work if necessary.

Gateway 3

High-risk buildings can only be occupied after the Building Safety Regulator has checked that the building work is compliant and has issued the building with a completion certificate. At that point, the building must be registered with the Building Safety Regulator. A building cannot be occupied without these two elements being in place.

There is an eight-week determination period from receipt of the completion certificate application.

Gateway 3 will take place at the end of the building work. At this stage, the Building Safety Regulator must be satisfied that, as far as it can determine, the as-built building complies with Building Regulations requirements.

New high-risk buildings can only be registered with the Building Safety Regulator after Gateway 3 has been passed either for partial or full completion.

Once any high-risk building has received its building control certificate, it can then be registered with the Building Safety Regulator. Registration must be completed by the building’s Principal Accountable Person. Further information on the roles and responsibilities of Accountable Persons and Principal Accountable Persons for occupied high-risk buildings is available at: Safety in High-Rise Residential Buildings: Accountable Persons.

The Building Safety Regulator will ‘call in’ registered buildings at regular intervals to make sure Accountable Persons and Principal Accountable Persons are regularly assessing and continuously managing fire and structural safety risks for their high-risk buildings.