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 now in force, the transitional period having closed on 6 April 2024.

The impact is being felt across all sectors and by all disciplines involved in the design and construction of building work.

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 from the smallest of residential alterations to the largest most complex mixed use development, irrespective of whether the designer and/or contractor are legally responsible for compliance.

The Health and Safety Executive (HSE) will act as the Building Safety Regulator. They are the only Building Control Body that can be used for high-risk buildings and the Gateway Process must be followed, see below. Building Control on non-high-risk buildings goes through the “traditional” process. However, to undertake statutory control, the Building Control Provider has to be a registered Building Control Approver and ensure they have appropriate numbers of Registered Building Inspectors to undertake the work under their control.  The list of Registered Building Inspectors is publicly available.

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’s 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?

Competence

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 government has stated a clear preference for the Principal Designer for BSA and CDM to be the same individual discharging both duties.

Guidance on competence for Principal Designers and Principal Contractors can be found in PAS 8671/Flex 8670 and PAS 8672/ Flex 8670 respectively.

It is also worth noting that more and more registration schemes are emerging for duty holders, in which individuals can register with an independently assessed level of competence. Sweco’s view is that appointing on the basis of independently assessed competence is likely to be preferred in the future. It is clearer evidence of taking “reasonable steps” in fulfilling the duty holder’s responsibility.

The Golden Thread

A defining element of the Building Safety Act is a ‘golden thread’ of information, which in basic terms is a digital record of the crucial building information. 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. The Golden Thread should be set up as soon as design work commences. 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.

Accountability definitions

Clarity is provided on the role and accountability of the ‘Accountable Person’, who oversees and/or manages the HRB in occupation. This individual is accountable for registering the building with the Building Safety Regulator and regularly logging information about the building and reviewing risk assessments.

The statutory responsibility to name a Building Safety Manager was dropped from the legislation 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 Accountable Person 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.

Accountability for Non-HRB in occupation comes under other legislation, in terms of fire precautions the duties are imposed through the Regulatory Reform (Fire Safety) Order.

Gateway concept

The Building Safety Act introduces the Gateway approach for the High Risk Buildings.  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.  This Statement lays down that the key considerations of Building Regulations have been considered in the design submitted and that if planning approval is gained the “form” of the building will not need to be amended to allow compliance with the Building Regulations as the detailed design is undertaken.

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. An acknowledgement of the duty of Mandatory Occurrence reporting and the system put in place to assure that reports will be made if necessary.

6. 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 (or 8 weeks for alterations and extensions) 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, however the period of time can be extended if agreed by both parties to allow time to reach an approvable proposal as 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. To occupy, the Accountable Person should have a Building Safety Case in place, based on the Golden Thread, and within six months of registration the Accountable Person will be invited to submit this document for consideration.

The Gateway process predicates against the Design and Build contract and in many respects reduces risk for the PD and PC. This was intentionally done following the recommendation of Dame Judith Hackett who stated “The review repeatedly heard that common practices such as design and build contracts and value engineering can often result in uncontrolled, undocumented and poorly designed changes being made to the original design intent”.

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:

1. Fire risk assessments which must consider external walls and all fire doors entering onto common parts.
2. The competency for those involved in the process and its documentation.
3. Tougher financial penalties are also a feature of the new reforms.