What the Building Safety Act 2022 means for construction clients

[edit] Introducing the Building Safety Act 2022

The Building Safety Act 2022 introduces the most radical change to the English regulatory landscape for the built environment in a generation. Needless to say, many of the changes have far-reaching consequences for construction clients. Some of the biggest changes have been to the Building Regulations 2010. Not only do they introduce new procedures, but they also impose new duties on construction clients, with, under revisions to the Building Act 1984, harsher penalties for failures to comply.

With the period of grace for transitional arrangements expiring on 6 April 2024, you cannot afford to ignore them. This article is based on the whole of the CIOB part 1 blog as well as part 2 of the blog and gives a comprehensive taste of what to expect for buildings other than higher-risk buildings.

[edit] Changes to building regulations

If you’re a construction client carrying on work in England – for example, an organisation building your own offices, a developer, or a homeowner doing up your home – you will be impacted by the recent changes to the regulatory system for building control.

These changes all stem from the 2017 Grenfell Tower fire, which precipitated a root and branch rethink of the way we protect the safety of the people who use buildings.

Led by Dame Judith Hackitt, the rethink found (among many other things) that the existing Building Regulations 2010 (BRegs), one of the main objectives of which is to protect people in buildings, had significant shortcomings. For example, she found that:

• The people carrying out design and building work, and those checking it, did not always appear to be adequately competent to ensure that projects they work on comply with the BRegs.
• The systems used to assure compliance in design and building work appeared to fall short of satisfactory standards.
• The penalties for breaches were not enough of a deterrent to discourage non-compliance.

The Building Safety Act 2022 (BSA) responded to these shortcomings, opening the way for a piece of secondary legislation – The Building Regulations etc. (Amendment) (England) Regulations 2023 – to fix them. It does this by amending the BRegs to:

• Introduce new dutyholder roles with accompanying duties.
• Insist that these dutyholders have adequate competence.
• Impose new procedures to mitigate risks to the safety of building users.

Closely related to these measures, the BSA also amended the Building Act 1984 to make dutyholders’ non-compliance more punitive in various ways.

[edit] What are dutyholders?

As the name suggests, dutyholders are persons (i.e., individuals or corporate bodies) with legal duties.

The new changes to the BRegs identify five kinds:

1. client
2. designer
3. contractor
4. principal designer
5. principal contractor

It is possible for one person to take on more than one dutyholder role. For example, principal dutyholders do just that: they have designer or contractor duties, with additional principal dutyholder obligations on top.

[edit] Clients

Under the BRegs, a ‘client’ is ‘any person for whom a project is carried out.’

There is a special sub-category of client called a ‘domestic client’, which means ‘a client for whom a project is carried out which is not in the course or furtherance of a business of that client.’

This includes Mr and Mrs Smith extending their home. They are treated differently because, rather like consumers, they are generally inexpert buyers of design and building services and are thus deserving of protection. Although they still have duties, these duties are less onerous than those of non-domestic clients.

A client cannot escape the client duties. Indeed, if a client fails to appoint others to dutyholder roles, or if other dutyholders’ contracts come to an end before the project has concluded, a client may find itself responsible for carrying out other duties on top of its own.

[edit] Other dutyholders

The other dutyholders all have a general duty to cooperate and comply with relevant requirements, which of course helps clients in meeting their duties.

A ‘designer’ is ‘any person who in the course of a business either carries out any design work, or arranges for, or instructs, any person under their control to do so.’

This definition is rather broad and can easily extend to persons who might ordinarily think of themselves primarily as contractors or clients (or domestic clients).

A ‘contractor’ is ‘any person who, in the course of a business, carries out, manages or controls any building work.’

This group can include a client but not a domestic client.

In a bid to assign accountability for compliance, the BRegs now require you to identify one designer and one contractor to be responsible for signing off on, respectively, all the design work and all the building work. The collective name for these persons is ‘principal dutyholders’.

Principal dutyholders are the client’s best friends, the persons they rely on to help them to comply, secure a completion certificate from the relevant authority, and thus manage their ongoing liabilities for the safety of users in their buildings.

A ‘principal designer’ takes on additional duties on top of their duties as designers. To do so, they must have ‘control over the design work.’

A ‘principal contractor’ takes on additional duties on top of their duties as contractors. They must have ‘control over the building work.’

Although there can only ever be one of each principal dutyholder in post at one time, it is of course possible to replace them mid-project.

[edit] CDM dutyholder roles

You might be thinking to yourself, “Hang on – these dutyholder roles aren’t new: they were already in existence under the Construction (Design and Management) Regulations 2015 (CDM).”

You’d be half right. There was (and still is) a set of dutyholder roles under the CDM but, even though they have DNA in common and have the same names, they are different to the new dutyholder roles under the BRegs.

It helps to think of the two sets of roles as ‘BRegs dutyholders’ and ‘CDM dutyholders,’ and remember that you may well need both on a project.

To avoid confusion, therefore, clients should clearly identify who is doing what in appointments and articulate expectations regarding these regulated roles accordingly. (Although it is not a given, the industry anticipates that CDM dutyholders will be appointed to the roles of the same name under the BRegs – if they are competent to do so.)

If this is still unclear, all dutyholders have a mutual obligation to help each other to meet their duties, which should ensure that important responsibilities and obligations are less likely to fall through the gaps. After all, the primary objective is compliance, not catching

[edit] The kinds of building project affected

The kinds of projects affected are those described in the BRegs. Although there are exemptions, this group includes almost everything from comparatively small alterations and renovations to large multi-million-pound projects.

[edit] Higher-risk buildings

One of the biggest changes in the BRegs is that it identifies a new category of building: higher-risk buildings (HRBs).

Although this blog does not cover the regulatory changes in relation to HRBs, which are radical, we mention them here because, even if you are not planning an HRB, you still need to know a bit about them.

Note: to find out about HRBs, see Part 2 of this series.

Briefly, HRBs are higher-risk because they share the characteristics and features of Grenfell Tower – for example, many storeys that make it difficult to evacuate in an emergency – that made the impact of its fire so disastrous.

To be classed as an HRB, the project must be for a building that, when built, will be at least 18 metres in height or have at least seven storeys, and contain at least two residential units.

Note: the full definition is quite involved, with surprising inclusions and numerous class exemptions.

HRBs are subject to a new building control regime overseen and administered by a new Building Safety Regulator.

The reason you need to know a bit about HRBs even if you’re not planning one is because a project might turn into one as it develops. If that happens after building control approval, the client must stop the project, regroup, and go down a different regulatory path. (Dutyholders have specific duties to report such a change to you.)

The new regime includes rigorous stop-go gateways likely to add significant amounts of extra time to any schedule and extra resources to manage the so-called golden thread of information and control changes. It also adds extra jeopardy insofar as the Regulator has the power to stop operations and withhold final approval. All this has serious implications for your business case and procurement strategy.

[edit] Clients’ statutory duties under the BRegs

The client’s chief duty, which does not extend to domestic clients (see below), is to make suitable arrangements for planning, managing, monitoring their project so that it complies with all relevant requirements. This includes allocating enough resources (e.g., time and, presumably, money).

A client’s arrangements are ‘suitable’ if:

• They ensure not just that the design work is carried out so that the building work to which the design relates, if built, would comply with all relevant requirements, but also that the building work is carried out in compliance with all relevant requirements.
• They enable the designers and contractors to cooperate with each other to ensure compliance with all relevant requirements.
• They provide for periodic review of the design and building work to identify whether it is HRB work.

Once these arrangements are in place, a client must:

• Ensure that they are maintained and reviewed throughout the project.
• Provide information about the building to every designer and contractor on the project as soon as practicable.
• Cooperate with other persons working on or in relation to the project such that other BRegs dutyholders can fulfil their duties or function. Note the wording here: clients must cooperate with all persons where a failure to do so might interfere with the ability of dutyholders on the project to fulfil their duties or function. Since this is likely to be rather hard to predict, it is best simply to cooperate with everyone with a legitimate interest in the project – regardless of whether they are dutyholders.

[edit] Domestic clients are not required to ensure suitable arrangements

When you are a domestic client, the duty to ensure that there are suitable arrangements in place or that they are maintained throughout the life of the project is allocated as follows:

• Where there is only one contractor, the duty is the contractor’s by default.
• Where there is more than one contractor, the duty is either the BRegs principal contractor’s or, where you agree in writing with the BRegs principal designer, the BRegs principal designer’s.

Note: however, that you must satisfy yourself that these duties have been allocated.

[edit] Situations where there is more than one client

Where there is more than one client on a project, they must agree between them in writing who is to take on the BRegs client role.

The other clients still have some duties under the BRegs, though. They are:

• the duty to provide information to the extent that it is in the possession of the client or which is reasonably obtainable by or on behalf of the client.
• the duty to cooperate with other dutyholders.
• the duty to make suitable arrangements to ensure that designers and contractors know that they are working on an HRB.

[edit] Appointments generally

When appointing any dutyholder, clients must take all reasonable steps to satisfy themselves that the prospective appointee is:

• competent to plan, manage and monitor its work so that it complies with all relevant requirements.
• able to fulfil its general duty to plan, manage and monitor. This is different to being competent: it means having the requisite capacity.

Checking competence and capacity are not straightforward. Fortunately, clients are in theory helped in this duty by would-be BRegs dutyholders’ reciprocal duty not take on roles that they are not competent or able to fulfil.

Even so, clients should look for appropriate qualifications, current certifications, experience, and references as evidence. (Since CIOB members are highly qualified and work to a code of professional conduct, they are a good bet as contractors and especially principal contractors.)

Similarly, clients should review their standard questions when appointing contractors and designers to elicit evidence of their competence.

Note: other than for individuals carrying out the BRegs principal dutyholder roles, the individuals carrying out the work may be in training provided their work is supervised by an appropriately competent individual.

[edit] Appointment of BRegs principal dutyholders

As well as meeting the general requirements for all appointments, clients must meet additional requirements when appointing BRegs principal dutyholders.

In particular, clients must take all reasonable steps to satisfy themselves that a prospective BRegs principal dutyholder has appropriate competence. This means:

• The prospective principal dutyholder must have control over the design or, as the case may be, the building work.
• Where a client is appointing a corporate body, the corporate body must have both the appropriate organisational capability and be able to designate an appropriately competent individual to manage the function.
• Where a client is appointing an individual, he or she must have appropriate skills, knowledge, experience and behaviours.

Note: This skill set is set out in PAS 8671 for BRegs principal designers and PAS 8672 for BRegs principal contractors

‘Behaviours’ here include refusing work which is beyond the individual’s competence, refusing to carry out work that would not comply with the BRegs, and cooperating with other persons in relation to the work.

A client must identify principal dutyholders for their project before the construction phase begins.

If a principal dutyholder’s contract with a client ends before the project completes then the client must appoint a replacement, failing which the principal dutyholder’s duties default to the client.

This is far from trivial: taking on these duties exposes a client to considerable liability if it is not suitably competent or doesn’t have the requisite capacity, and so it should replace departing principal dutyholders quickly or plan to keep them for the duration of the project.

Generally speaking, since principal dutyholders are so pivotal to demonstrating compliance, and since balls are more easily dropped when responsibilities are handed over, clients are wise to avoid switching principal dutyholders mid-project, if possible. This means treating the vetting process carefully.

[edit] Where there is more than one contractor

Where there is (or is likely to be) more than one contractor, a client may identify a BRegs principal contractor in one of two ways:

1. It can appoint them directly. If so, it must be in writing.
2. Alternatively, it may certify in writing that the CDM principal contractor is also contracted to the BRegs principal contractor role.

[edit] Where there is just one contractor

Where there is (or is likely to be) only one contractor, BRegs principal dutyholders are assigned either by default or without the client’s involvement.

Thus, where there is only one contractor, that person adopts the BRegs principal contractor role by default and must fulfil its duties. They are called a ‘sole contractor’.

If there is a sole contractor and is also (or is likely to be) just one designer at any time, that designer is treated as the appointed BRegs principal designer by default and must fulfil the role’s duties. They are called the ‘sole designer’.

If there is a sole contractor but more than one designer at any time, you still don’t have to make an appointment. Instead, the designers must between them agree who is to fulfil the principal designer duties. They must do so as soon as possible, and the person that takes on the role (called the ‘lead designer’) must give you a copy of the resulting written agreement.

Despite not being involved in these assignments, the client should nonetheless check that the assignees are competent and confirm with the sole contractor and sole/lead designer that they understand their obligations as principal dutyholders under the BRegs.

[edit] What happens after a client appoints a principal dutyholder

After the client appoints a principal dutyholder (or sole contractor and sole/lead designer) at any time after an application for building control approval is made or a building notice is given, the client must give notice to the relevant authority. The notice must include:

• The building work’s location.
• The appointee’s details.
• The date you appointed them.
• Except where they are the first appointee to the role, their predecessor’s contact details.
• The date the predecessor ceased to be in the role.

Someone can do this on the client’s behalf, but if so, the client must sign it off with an appropriate statement.

The client should expect departing principal dutyholders to send a document explaining their compliance strategies, and this must arrive no later than 28 days after the end of their appointment.

This is a critical part of the compliance jigsaw puzzle, so clients should make sure that they secure it and show it to the replacement principal dutyholder as soon as possible.

[edit] What happens after a domestic client replaces a principal dutyholder

Things are slightly different for domestic clients. When principal dutyholders (or sole contractor and sole/lead designer) change, domestic clients should expect the outgoing dutyholder to notify them within five days of the appointment ending.

After that the domestic client must, as soon as practicably possible, provide the replacement dutyholder with their predecessor’s contact details and the date that their appointment ended.

Any liaison with the relevant authority is down to the replacement dutyholder.

[edit] What you can expect from the BRegs dutyholders you appoint

BRegs dutyholders must provide information to assist the client to comply with all relevant requirements.

Similarly, BRegs dutyholders must all be satisfied that you understand your duties under the BRegs. This means that they should at the very least ask the question. Some might go further and furnish you with a document describing your duties.

You have the right to expect help from contractors and designers on certain matters beyond their automatic legal duties.

For example, if you ask them to notify you when any of the work is higher-risk building work, they have a statutory duty to do so.

You also have the right to ask principal dutyholders to assist you in providing information to other dutyholders, and they have a statutory duty to do so.

Finally, you should be able to count on principal dutyholders to make sure that other dutyholders cooperate with you.

[edit] What happens if you take over from another person in the BRegs client role

Clients that take over a project at any time after an application for building control approval is made or a building notice is given must give notice to the relevant authority. The notice must include:

• The building work’s location
• The new client’s contact details
• The date the new client took on the role
• Their predecessor’s contact details
• The date the predecessor ceased to be client

Someone can do this on the client’s behalf, but if so, the client must sign it off with an appropriate statement.

[edit] Other communication with the relevant building control authority

Changes to the BRegs affect how you must notify the relevant building control authority. For non-HRBs, the most important changes affect commencement and completion.

[edit] Commencement

The definition of commencement matters because until then, the clock is ticking towards the expiry date of your initial approval notice.

This definition varies depending on the project type. For work that does not involve foundations, for example, commencement only kicks in once 15% of the work is complete. On the other hand, complex new buildings are ‘commenced’ once the foundations and structure for the lowest floor have been built.

[edit] Completion

Once your project is complete, you must notify the relevant authority within five days. The bundle of information in the notice should include statements signed by:

• the principal dutyholders confirming that they have fulfilled their respective duties under the BRegs.
• the client confirming that, to the best of its knowledge, the work complies with all applicable requirements.

If the Regulatory Reform (Fire Safety) Order 2005 applies to your building, the bundle must also include information related to fire safety.

Note: The Regulatory Reform (Fire Safety) Order 2005 applies to all non-domestic premises including workplaces and the common parts of multi-occupied residential buildings in England and Wales

The relevant authority then has eight weeks to issue a completion certificate to confirm that the project complies with relevant requirements. This certificate is valuable evidence of compliance but not conclusive evidence. The door is left open, meaning that you have an ongoing liability.

[edit] Tougher penalties

Not only did the BSA change the BRegs to locate responsibility for compliance more precisely, they also ramped up the penalties for breaches and contraventions prescribed in the Building Act 1984, with the potential for longer prison terms, tougher fines, or both, and with extra penalties for every day that fines are unpaid.

Notices to remove or alter offending work can now be made up to 10 years after the event – instead of the old 12 months.

Also, your project can be ordered to stop even if the relevant authority only suspects (with evidence) that there is a ‘risk of serious harm condition’.

Finally, where an offence under the Building Act 1984 is committed by a body corporate with the consent or connivance of any of its officers or neglect on their part, that individual (as well as the body corporate) commits the offence and is liable accordingly.

[edit] Conclusion

In aiming to better mitigate risks to the safety of building users, the changes to the BRegs (and the Building Act 1984 that rules them) have significant impacts for the lynchpin role of client.

With great influence comes great responsibilities, which are now spelled out in law:

You must plan, manage and monitor compliance.

You must satisfy yourself about your appointees’ competence.

You must cooperate and share information.

And if you don’t, you face stiffer penalties and longer-lasting liabilities than ever before.

[edit] The ‘Gateways’ Concept

Although the terminology of ‘gateways’ to describe the new regime’s stop-go stages does not appear in the legislation, the industry continues to use it because it makes it easier to understand the overall concept.

There are three gateways, each policed by the relevant authority. The subjects of this blog are gateways two and three.

(For completeness, gateway one is where you secure planning permission but, since it is unrelated to the BSA, it is beyond the scope of this blog.)

Gateway two is where you secure building control approval from the BSR. You must not start construction work until then (although you may start some enabling works).

Gateway three is where you secure a completion certificate, again from the BSR. The building affected by construction work must not be occupied until then.

To proceed through gateways two and three, the BSA and its associated procedural regulations insist that work stops until the BSR has approved plans (gateway 2) and occupation is delayed until they have issued a completion certificate (gateway 3). The BSR also have the power to stop parts of the construction work if it diverges from the agreed plan.

Ultimately, approval depends on BSR seeing evidence that your project complies with relevant requirements, is likely to be well managed, and creates, maintains, and hands over the golden thread of information.

[edit] What is the golden thread of information?

The ‘golden thread of information’ is one of the chief innovations under the new regime.

Ethically inspired, it is any secure digital system capable of capturing and sharing all the information about the design and construction work needed for the building’s future management and maintenance. Used and updated responsibly, the hope is that this information will minimise health and safety risks for occupants.

The idea is that there is one lasting repository for all this information – ‘one source of truth’ – that can easily be accessed, understood and used by the building’s future occupants (e.g., Accountable Persons), and easily shared with those who need it, including residents and emergency responders. It is also intended to be used by project teams when subsequent construction work is carried out.

While establishing the golden thread of information seems onerous at first sight, it has significant upsides. In being forced to think about occupants’ safety needs from the very start of your project, you are more likely to identify and thus have the chance to avoid related risks, with the advantage also of avoiding unforeseen delay and cost during construction and reducing your long-term liabilities.

BSR relies on the golden thread of information procedurally. It is an essential element in a package of information that assures them that your initial application and application for a completion certificate are valid and provide sufficient evidence to decide on your applications.

You are ultimately responsible for ensuring that arrangements for the golden thread of information are in place and operate effectively. Of course, you are likely to want to formulate and agree them in consultation with relevant actors in your project team. (Indeed, your principal dutyholders have specific duties to help you in that regard.)

You are also responsible for resourcing suitable digital systems for storing it.

[edit] What are HRBs?

In England, a HRB is any occupied building that is at least 18 metres in height or has at least seven storeys and contains at least two residential units.

Inconveniently, descriptions of types of buildings included, and the definitions of terminology (such as the building’s height and what counts as a storey) are set out separately, the former in the BSA, the latter in The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.

Since these definitions and descriptions have the potential to confuse, DLUHC published useful criteria, which greatly clarifies the detail.

[edit] Which projects are affected?

You must follow the new regime if your project is in England and you:

• plan to build a new HRB;
• create an HRB through change of use; or
• plan to undertake building work to an existing HRB.

[edit] What happens to projects that were already under way?

Whether HRB projects that were already under way before 1 October 2023 are caught by the new rules depends on how advanced they were on that date.

HRB projects that had secured an initial notice or deposited full plans with their local authority by 1 October 2023 can proceed under the old building control regime, provided:

• the applications to the local authority are not rejected
• construction work is sufficiently progressed by 6 April 2024
• their building control approvers have become registered building inspectors before 6 April 2024.

Those that were not must follow transitional arrangements under the new building control regime.

It is worth noting that regardless of which building control regime your HRB completes under, you must still register it (see how) with BSR prior to occupation. Also, even if your HRB is eligible to complete under the old regime, you will still have responsibilities to Accountable Persons on occupation and so it will pay you to set up and operate a system for operating a golden thread of information.

[edit] What are the new building control procedures?

Procedures for the new building control regime are set out in The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, which are summarised below.

[edit] How does BSR assess applications?

The BSR’s HRB building control role is carried out, in exchange for various fees, through a multi-disciplinary team. They must have time to carry out their regulated role, which includes liaison with statutory consultees.

Unlike the old regime, the new regime requires you to have refined your design and worked out your processes comprehensively before you apply. In the application, this must be evidenced in many documents that BSR will depend on to approve your project.

Since no construction work can start before approval and refusal could add delay and cost, you should focus on ensuring not just that you have ticked all the information-supply boxes but that the information is clear and easy to understand.

While you must approve the overall approach taken in your application, you are very likely to depend on your appointed dutyholders for the technical detail in this package of information. This emphasises the importance of appointing competent people to these roles.

All applications must go directly through the BSR. You may not use private sector approved inspectors.

[edit] At Gateway Two

At Gateway Two, BSR requires you to submit the following:

[edit] Competence declaration

Competence declaration. You, or someone on your behalf, must sign a declaration that you have assessed your current team’s competence to discharge their responsibilities and are satisfied that they meet the minimum threshold. Indeed, you must ask prospective appointees whether they have received a serious sanction in the last 5 years.

If you discover that they have had a serious sanction, weigh this information in your decision to appoint.

You must record in writing the steps you took to assure yourself of the appointees’ general and role-specific competence, and their ability to plan, manage and monitor their work.

[edit] Drawings and plans.

Drawings and plans. You must supply sufficient drawings and plans (as PDFs) to show how you will meet the building regulations. To make life easier for the BSR, your plans and drawings should be organised so that they can be accurately and easily referenced in other documents in your application.

[edit] Building regulations compliance statement.

Building regulations compliance statement. This is a method statement demonstrating how you intend the scheme to comply with relevant requirements of the building regulations, and why you adopted your approach over alternatives.

[edit] Change control plan, including a change control log.

Change control plan, including a change control log. This is a system for how you intend to control the changes that inevitably happen during the construction phase of a project. Every unplanned change risks compromising compliance and deviating from the outcome approved by the BSR and so must be treated with care.

[edit] Construction control plan.

Construction control plan. This is your plan for how the construction works will be managed so that, on completion, your HRB complies with relevant requirements. Focusing strongly on cooperation and coordination in the project team through competence and good communication, it should set out strategies for evidencing compliance and a system for controlling changes. As well as helping you to control the project, the document has practical value in communicating your strategy to everyone on the project team.

It should detail:

• The work to be carried out
• All the dutyholders and what each is responsible for on the project – probably best set out in some form of RACI (responsible, accountable, consulted, informed) matrix.
• The strategies to encourage cooperation between project team members and others involved in the project. (See this Government-sponsored guidance to find out how this can benefit you.)
• The arrangements (policies and procedures) for ensuring that the project team knows how to operate the various systems, including:
  • The system for managing the construction work
  • The system for controlling changes in accordance with relevant requirements
  • The system for managing the golden thread of information – probably best if it conforms to the ISO 19650 series of standards.

[edit] Fire and emergency file.

Fire and emergency file. This document assures the BSR that implications of the design for managing building safety risks by eventual occupants are properly considered up front.

It must describe the strategies clearly, set out why their underpinning design assumptions are reasonable, and explain how their adoption appropriately mitigates the risks for occupants.

[edit] Mandatory occurrence reporting plan.

Mandatory occurrence reporting plan. This document explains your system for reporting certain occurrences that threaten the safety of eventual users of the HRB. It includes a statement that you are satisfied that the system is in place and that it is sufficient.

The only occurrences mandated are those that present a risk of death or serious injury to a significant number of people, and are therefore usually limited to risks from fire or structural failure.

[edit] Partial completion strategy (optional)

Partial completion strategy (optional). Where you propose occupation of part of the building before the HRB work is fully completed, you must document your strategy for doing so and include it in your initial application. It must demonstrate that the safety of occupants will not be compromised.

The BSR has 12 weeks to assess an application to build a new HRB, and eight weeks to assess an application to carry out building work on an existing HRB.

The BSR may request more information or changes to your application when they receive it, which could entail extra time, which must be agreed with you.

They will give you their decision in writing. Approval lasts for as long as you continue to meet their conditions, which include you doing as you describe in the application and adhering to:

• an inspection schedule for the building work;
• the documents that you must maintain for the duration of the project;
• a suite of requirement notices, if applicable; and
• an inspection schedule that includes notification points where work will be assessed before that element of the project can progress.

You may ask for any condition imposed by BSR to be changed, provided you have good reason.

[edit] Part Applications

BSR will accept applications for parts of the project if you cannot viably complete the whole project in one go.

Even so, you must work out the whole project fully before you make the first application. In particular, your application must include full descriptions of and a works schedule for all the other parts of your scheme.

The descriptions must include enough detail to assure the BSR that your overall project will, on completion, comply with all relevant requirements. Thus, if you are applying for approval in relation to the HRB’s foundations and sub-structure, you must also provide the BSR with sufficient information about its superstructure. Assessing the suitability of the former depends heavily on understanding the specifics of the latter.

[edit] During construction

You may start enabling works (e.g., site set-up, demolition works, stripping out, excavation of trial holes) without building control approval from BSR.

However, you must have that approval and give BSR five days’ notice before you start any permanent construction work.

You must ensure that your project team:

• completes work in accordance with your plans and the conditions of the approval. Documents related to managing and monitoring the project submitted in your application to BSR must be kept up-to-date and accurate
• reports qualifying safety occurrences using your mandatory occurrence reporting system
• records ‘controlled’ changes in your change control log. This means changes that involve carrying out construction work other than as set out in the current plans, and/or departing from the strategies, policies and procedures described in current documents.

You must tell BSR about two types of controlled changes:

• Major changes, i.e., ones that undermine the basis upon which building control approval was granted. You must not allow your project team to implement a major change until you have applied to the BSR and secured their approval for it. The default timescale for BSR to respond is six weeks. However, they may take longer, if necessary, in which case they must agree a new deadline with you in writing.
• Notifiable changes, i.e., ones that affect compliance with relevant requirements in the building regulations. You must notify BSR first but otherwise do not have to wait for their approval before making the change.

Note: BSR has the power to reclassify changes and so you cannot completely rely on your own team’s assessments. This introduces some unwelcome jeopardy, emphasising how important it is to avoid changes on site as far as reasonably practicable and, if a change is unavoidable, to err on the side of caution when assessing its impact.

At Gateway Three

Occupants cannot move into a newly built HRB until they have secured a completion certificate.

Once the work is complete and before you apply for the certificate, you must first:

secure statements from the dutyholders on your project team that the work satisfies the functional requirements of the Building Regulations 2010.

send copies of all the relevant information to the relevant person (e.g., the Accountable Person), who must confirm in writing to you not only that they have received and can read copies of all the information, but that it is sufficient to allow them to understand, operate and maintain the HRB and its systems.

Your application must demonstrate that you built the HRB according to the approved design and that it meets all relevant requirements.

As well as the statements from your dutyholders and the person you are handing over to, the package of information, which must be stored in the golden thread of information, must include:

information about the HRB, including ‘as built’ plans and drawings;

final versions of all documents that featured in the initial application;

the final version of the change control log;

information captured during construction;

information captured during commissioning;

information captured during final functional inspections;

Armed with your application, BSR will conduct final inspections.

If satisfied, they will approve your application in writing and issue a completion certificate. The regulations make a point of emphasising that the approval is not conclusive evidence of compliance, which of course means that, while helpful, it does not fully limit your liability for work subsequently found not to comply.

If BSR is not satisfied, they will reject your application outright in writing with reasons.

It is too soon to say how the BSR will treat unsatisfactory applications but there is clearly a risk that the whole project will stall for some considerable time on top of the statutory eight weeks. Once again, since delays are likely to be extremely unwelcome, this risk emphasises the good sense in investing time and resources in getting your application right first time.

Enforcement powers

BSR have powers of enforcement commensurate with the risks they want you to avoid. For example, it is a criminal offence to:

provide false or misleading information to BSR, with penalties that include unlimited fines and up to two years’ imprisonment

contravene the Building Regulations 2010, with penalties that include unlimited fines and up to two years’ imprisonment

fail to comply with compliance and stop notices, with penalties that include halting work until you rectify the offending work and forcibly removing contravening work and charging the cost to you.

Additional or alternative client duties

Working on HRBs means that you have additional duties as the client on top of the ones set out in part one of our blog in this series.

You must make suitable arrangements to ensure that:

designers and contractors know the project is for an HRB

you furnish them with information about the nature of the HRB work.

These arrangements must include periodic reviews of the project’s HRB status and the nature of the HRB work. Information about any changes must be passed on to all contractors and designers (including the principal dutyholders) on the project.

Overall implications for clients

The new regime radically increases the amount of regulatory oversight of compliance before your start construction work, during the building phase, and on completion.

This has significant benefits. The increased oversight stops you from rushing in before you have fully considered your construction plans, improving your chances of avoiding risks to safety. This has other theoretical advantages: working things out properly up front and avoiding late changes tends to keep overall costs and delays to a minimum, and helps to mitigate risks in relation to your long-term liability.

On the downside, the new regime looks likely to add significant amounts of extra time to any project schedule and could disrupt received wisdom about procurement routes. For example, the need to resolve the design fully before starting on site could make design and build options less attractive.

The new regime also adds extra jeopardy insofar as the BSR has considerable enforcement powers that could delay or stop you starting on site and allowing occupation.

Overall, the durations of BSR’s approval processes and the risks that they might stop you in your tracks highlights the importance of investing time up front to make those plans as comprehensive, well-organised, and fixed as possible before the initial application and to maintain them for the duration.

Since the new regime simply fixes the problems of the old regime, you could argue that we should have been doing things this way all along. Whether or not you agree, we owe it to the victims of the Grenfell Tower fire to try.

For more detail on the new regime, read DLUHC and Health and Safety Executive guidance.

This article appears on the CIOB news and blog site as "What the Building Safety Act 2022 means for construction clients - Part 1" dated January 23, 2023.

--CIOB