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) has ben in force since the transitional period closed on 6 April 2024.

Despite the passage of time, the BSA’s impact is still being felt across all sectors and by all disciplines involved in the design and construction of building work as they try to come to terms with its implications.

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) houses 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 Inspctors 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 BSA 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, whereas Residential and Student Accommodation buildings have to be registered prior to occupation and are subject to the control of the BSR in their management. Hotels are not defined as High Risk Buildings.

What are the main points of interest in the Building Safety Act 2022?

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.

It is intended that when the Architect is acting as the Lead Designer that they should be the Principal Designer (Building Regulations); this intention becomes less clear when the Principal Contractor is appointed and starts to lead the design in a D&B contract. The client in making its appointments should ensure clarity and understanding if there will be a need for the PD duty to be transferred to the PC.

The use of the term Principal Designer has caused some confusion with the CDM role. 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, but acknowledges the PDCDM role may be performed by a sub consultant, this cannot be done with PD Building Regulations.

Given that competence sits at the heart of fulfilling duties under the Act it is 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 in their profession. These schemes cover both design and construction disciplines. Sweco’s view is that appointing based on independently assessed competence is likely to be preferred in the future. It is clearer evidence of taking “all 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 use, update and add to the information easily.

The Golden Thread technically only applies on HRB projects, but Sweco have noted that the term is already being used on non HRB projects. This is hardly surprising as, HRB or not, the management of information on building projects is critical.  It is essential for the client to fulfil their duties when the building is in occupation and to do this they need to understand the building they have to manage.  To this end they should understand and agree each design/construction decision made in terms of the consequential inspection/testing/maintenance/replacement duty it places on them when the building is occupied.

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 is 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 BSR has provided a wealth of guidance on the HSE web site on the processes around HRB applications.

At the time of writing the system is under stress and the suggested time scales being significantly exceeded and inconsistency of approach, by the appointed multi-disciplinary teams checking the application on behalf of the BSR, being reported. Sweco Building Safety Team offer advisory services on making Gateway Applications to try to mitigate the risk presented to HRB projects.

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:

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