Building safety regulations give industry clarity ahead of new legislation

Health and safety expert Katherine Metcalfe of Pinsent Masons, the law firm behind Out-Law, said the regulations, covering areas such as the building control process for higher-risk buildings, construction products and regulatory fees, provide much greater clarity about what will be required to comply with construction phase duties.

“These regulations should allow duty holders to advance their preparations for the new regime,” Metcalfe said.

The Building (Higher-Risk Buildings) (England) Regulations [2022] (32 page / 773KB PDF) contain detailed provisions setting out how the bill’s ‘gateway’ system will work for higher-risk buildings from design to the issue of a completion certificate.

Under the Gateway 2 process, clients will have to apply for building control approval before work starts on a higher-risk building. Building work is now defined, and excludes demolition and site clearance.

The regulator must determine Gateway 2 applications within 12 weeks.

The higher-risk buildings regulations also stipulate golden thread information will have to be held digitally, and the client will have to put arrangements in place to ensure this happens.

The regulations set out key information which must be submitted digitally to the Health and Safety Executive (HSE), although there are no requirements for this information to include a 3D digital model of the building.

“The golden thread requirements have the primary purpose of enhancing safety in higher risk buildings, but they should also really help us towards swifter resolution of defects claims,” said construction dispute expert Julian Brooksbank of Pinsent Masons.

Requirements for the new mandatory occurrence reporting system are also set out in the regulations. The primary duty to put in place a mandatory reporting system will fall to the principal contractor and principal designer.

All duty holders need to use the system to report safety occurrences such as aspects of design relating to the structural integrity or fire safety of a higher-risk building, or other situations relating to structural integrity or fire safety that could present the risk of serious injury or a number of deaths.

These occurrences must be reported to the HSE within 10 days, allowing the regulator to work out which matters it may need to investigate and enforce during construction.

The Building Safety (Fees) Regulations [2022] (5 page / 212KB PDF) give HSE the power to charge fees for all aspects of the regulation of higher risk buildings.

This includes: all building control functions, including Gateway 1 and 2 approvals; dealing with change control applications after Gateway 2; Gateway 3 approvals, including completion certificates, applications for registration of higher risk buildings, applications for a building assessment certificate and reviewing safety case reports; registration of building inspectors and building control approvers; and taking enforcement action against duty holders.

Clients will be responsible for paying Gateway 1 and 2 fees, and fees for change control and a completion certificate. The “principal accountable person” is responsible for Gateway 3 fees.

Fees for enforcement activity will be payable by the person in breach of the building regulations. The threshold for incurring fees is merely a contravention of building regulations. This is lower than the threshold for fee recovery for health and safety breaches, where the contravention must be “material”.

HSE will have the power to publish a fee-charging scheme, reviewed on an annual basis. It is not yet known what the fees will be.

The Building (Restricted Activities and Functions) (England) Regulations [2022] (5 page / 230KB PDF) will alter the current role of approved inspectors. Building control activities in relation to higher risk buildings can only be carried out by registered building control approvers using a registered building inspector whose registration covers higher risk buildings.

“This supports the goal of improving the competence of building inspectors, both public and private, and removing the ability to choose your own inspector for higher-risk buildings,” Pinsent Masons’ Metcalfe said.

Other areas covered by the draft regulations include construction products – in other words, any product or kit which is placed on the market for permanent incorporation in any construction works including buildings and other infrastructure projects.

The Construction Products Regulations 2022 (55 page / 1.18MB PDF) will apply throughout the UK. Although the regulations apply to a wider group of ‘products’ that the narrower sub-set to which former EU rules applied, the rules closely follow the previous EU-based rules. Construction products must not be placed on the market unless they are safe.

There will be enhanced rules for safety critical products, and standards group BSI will draw up safety critical standards for these to set out the intended use of the product, the safety-critical properties, the required performance standard and the system for assessment and verification of the constancy of performance (AVCP), which may include testing, sampling, inspection and surveillance.

A safety critical product can only be placed on the market with a declaration of performance in accordance with the BSI standard, and AVCP can only be undertaken by UK Accreditation Service approved bodies.

The rules are backed up by extensive new enforcement powers, including civil penalties as well as criminal sanctions for non-compliance.

Projects law expert Sonal Shah of Pinsent Masons said: “Employers and those in the supply chain will want to ensure that they properly engage the relevant technical specialists at all stages of the project to help ensure that suitable materials have been specified, procured, and installed.”

Other regulations cover architects’ fees, and set out principles to be applied to managing building safety risks.

The development of the Building Safety Bill was covered by Pinsent Masons in a recent webinar. This looked at issues including any risks created by the changed regime; fire safety claims; the future of building safety from an investor and developer point of view; and emerging trends on new projects.