These are the biggest changes to building safety legislation for nearly 40 years, and they will raise standards across the industry and ensure building owners have nowhere to hide if they break the rules.
Lord Greenhalgh Building safety and fire minister
The Building Safety Act 2022 – Summary & Guidance
Sweco author: Neil Badley MRICS, with contributions from across our Building Control team
The Building Safety Act 2022 (applicable to England and Wales) is set to transform how tall structures are designed, constructed and managed, with the Government describing the changes as the biggest for almost four decades.
The Act gained Royal Assent 28 April 2022 and since then numerous consultations have been undertaken that have underlined the massive implications for the industry. The impact will be felt across all sectors and by all disciplines involved in the design and construction of building works.
At the heart of the change is the legal obligation for all individuals and organisations to be competent to ensure compliance with the Building Regulations in both design and construction. This obligation applies across all sectors even the smallest of residential alteration, whether the designer and/or contractor are legally responsible for compliance whether in formal contract or not.
The Health and Safety Executive (HSE) will act as a new Building Safety Regulator (Building Control body for high-risk buildings), bringing checks and balances in line with its already established protocols and best practices in other areas. Tougher penalties will also be put in place for anyone who breaks the rules being put forward, in particular any building owner who does not ‘demonstrate that they have effective, proportionate measures in place to manage safety risks’.
The Building Safety Act has now passed into it’s transitionary stage – if a project did not have an Initial Notice served on and accepted by a Local Authority prior to 1 October 2023 it comes under the Act.
If a notice in place the project must be “sufficiently progressed” prior to 6 April 2024 to continue to benefit from the Transitionary requirements and not fall under the control of the Act.
Sufficiently progressed means either pouring of concrete for permanent placement of foundations or piling associated with the building or if there are no foundation works associated with the project that relevant work has been undertaken.
Does the Building Safety Act apply to all buildings?
The responsibility for competence applies to all building works subject to the building regulations.
The Act also puts specific controls in place for high-risk residential buildings (HRRB). HRRB are buildings over 18m in height or have seven or more storeys and two or more residential units (typically high-rise apartment blocks, student accommodation, hospitals and care homes). Relevant hospitals and care homes are only controlled through their design and construction phases. Hotels are not currently including in scope of the new controls outlined below.
What are the main points of interest in the Act?
A defining element of the Building Safety Act is the responsibility on Clients, Designers and Contractors to be competent to ensure compliance with the Building Regulations. For Principal Designers and Contractors this responsibility for competence extends to compliance with the Act.
The use of the term Principal Designer has caused some confusion with the CDM role. It is intended that the Architect as the Lead Designer takes on the role of Principal Designer under the Building Safety Act 2022; as it has to be an entity or individual in the position to plan, manage and monitor the whole design process . The CDM15 Regs were also intended for the Lead Designer to take on the Principal Designer role this has not become industry standard and rarely occurs.
The consultation documents set a clear preference for the Principal Designer to be the same individual discharging both duties but the at the same time acknowledged this may not be the case.
The Golden Thread
A defining element of the Building Safety Act is a ‘golden thread’ of information, which in basic terms will act as a digital – and always-accessible – audit trail throughout the life of a building. no explicit directive is given for the digital method of data gathering/holding recognising that digital solutions advance quickly.
However, it’s clear that effective, collaborative whole-lifecycle BIM solutions will be essential to the success of this core aspect of the Act. It should be borne in mind that by far the longest part of the Golden Threads existence will be when the building is occupied and therefore the environment it is held in should enable the Accountable Person to update and add to the information easily.
Duty Holder clarification
Definitive responsibilities will be assigned to the full spectrum of duty holders involved in a building project – such as the client, the principal designer, designer, principal contractor, or contractor.
Effectively, anyone who might create a risk during their contribution to a construction or refurbishment – either as an individual or via a multi-disciplinary service provider – will be expected to manage that risk and its associated compliance demands.
It is only right that those who commission building work and who participate in the design and construction process take responsibility for ensuring building safety is carefully considered throughout the project and the building is fully compliant with building regulations, thereby ensuring that residents are safe and feel safe.
Clarity is provided on the role and accountability of the ‘Accountable Person’, who oversees and/or manages the building post-build. This individual is accountable for registering the building with the Building Safety Regulator and regularly logging information about the building to reviewing risk assessments.
The statutory responsibility to name a Building Safety Manager has been dropped but, even so, the Accountable Person has to be absolutely clear how they are going to ensure their continuing responsibilities throughout the occupation of the building are met.
All existing buildings over 18m or 7 storeys, with two or more residences, should have been registered with the Building Safety Regulator, if this has not occurred the accountability is in breach of their responsibility under the Act. The BSR will now start the process of requesting the Safety Management System for consideration. The invitations will be sent on a priority basis and the whole exercise is expected to last five years and then continue on a 5 yearly review cycle.
The Building Safety Act introduces the Gateway approach for the buildings in scope. There will be no choice of Building Control provider and all building works, new build, extension, refurbishments will be subject to the control of the Building Safety regulator and the Gateway Approach.
Designers will be familiar with the need to provide a Fire Statement at Gateway 1 as part of their planning application, care should be taken with these reports as it is understood that the Building Safety Regulator, through the consultation process, is not accepting the approach proposed on over half the statements submitted.
Gateway 2 makes it mandatory to have Building Regulation Approval for the project before commencement. Also, the information to be provided to pass through Gateway 2 far exceeds traditional statutory expectations and includes:
1. Competency statements for the Principal Designer and Contractor (this will mean contractors having to be selected much earlier in the programme than is generally the case currently)
2. A statement clearly laying out the key standards used to design the building and substantiation as to why the chosen approach is appropriate.
3. Statements on how the building will be controlled in construction to ensure compliance
4. A statement as to how changes in the design will be recognised and managed throughout construction to ensure that approval is gained from the BSR before the specific work is undertaken
5. If a phased completion is anticipated the plan for this approach must be submitted and approved prior to commencement
The Building Safety Act 2022 gives the BSR 12 weeks to give a decision following the submission of an application, the design team is advised to be certain of the compliance of the proposed design prior to applying, the 12 weeks does not allow for development of the design in response to non-compliances found and a rejection would mean work cannot commence on site.
Gateway 3 is to ensure that buildings are correctly built, and information has been provided to the Accountable person to allow the building to safely occupied. To allow occupation the contractor has to apply to the BSR for the issue of a Completion Certificate – the BSR have up to 8 weeks to respond to this application.
When the Completion Certificate has been issued, the Accountable Person can apply to register the building, the building can only be legally occupied once this is done. Within six months of registration the Accountable person will be invited to submit Safety Management System for consideration, it is expected this document will be based on the Golden Thread.
Regulatory Reform (Fire Safety) Order 2005 amendments – Fire Safety Act 2021
More prescriptive guidance is set in the new Fire Safety Act 2021, particularly aimed at the building owner ‘responsible person’, including fire risk assessments which must consider external walls and all fire doors entering onto common parts, and the competency for those involved in the process and its documentation. Tougher financial penalties are also a feature of the new reforms.
Top 5 considerations for building design, construction & management
- Clients, principal designers, and contractors need to think carefully how they are to ensure they meet their responsibilities under the Act and how their teams need to be expanded/ trained and to ensure they do not fail and become liable. Everyone needs to work with the mindset that the operational safety of the building is key and accountability does not stop at the end of the design or construction.
- The introduction of the Gateway 1 means that earlier consideration needs to be given to fire strategies to ensure passage through the planning process.
- The introduction of Gateway 2 means that for projects in scope design and build cannot be used and careful consideration will be needed in terms of programming and the competence of everyone involved.
- The introduction of the ‘golden thread’ means further digital investment will be needed to record the lifecycle of the building
- The process of applying for a completion certificate and then registering the building prior to occupation and the time frames proposed for the BSR to respond means careful consideration needs to be given around the programming of this phase of the development.