BSA Essential Questions Answered | Griffiths & Armour

Part 1 – Introduction

Why are we creating this FAQ?

The new Building Safety Act (‘the Act’) and the extensive additional information that comes with it is a complex topic that many of our clients are only beginning to grapple with. Whilst it’s unrealistic for us to grasp every detail, our aim is to develop our knowledge and share a solid understanding of the key themes. This FAQ series is designed to provide that essential knowledge.

Like everyone, we’re learning as we go, so we’ll be updating and expanding this FAQ over the coming weeks. If anyone has any questions they’d like to see addressed, then we’re probably all thinking it too, so please let us know by clicking here. Stay tuned for more instalments in the coming weeks.

Why was the Act introduced?

The Act is the Government’s response to the Grenfell Tower disaster, which claimed the lives of 72 people in 2017.  It was the deadliest residential fire since World War II.  Investigations including Dame Judith Hackitt’s ‘Building a Safer Future’ and the ongoing Grenfell Inquiry, have revealed systemic safety shortcomings in the construction sector.

At the time of writing we await the Inquiry’s final report, which is due to be published in the early summer of 2024, and this will be an important milestone in understanding what the future holds for the construction industry and what level of claims insurers might face.  We’ll discuss the implications in a later instalment.  What the work undertaken to date has shown, is that the attention given to fire safety has been woefully inadequate and that the regulatory framework needs to be radically overhauled.

The Act aims to deliver this overhaul and strengthen the building safety regime. It is more than just about the Act, however, and there are numerous pieces of so-called ‘secondary legislation’.  This is detail which sits behind the Act, which contains significant amounts of complex information on the roles, requirements and how the regime will be actually implemented.

Who should be aware of the Act?

From building owners and property managers, through to those who commission building work and those responsible for designing and constructing buildings, the Act applies widely.

The Act is not just about ‘high rise residential’ buildings. Elements of the new regime will apply to all buildings in England, with some variation across the UK and Northern Ireland.

Construction professionals, including engineers, contractors, surveyors, and architects, will all experience some degree of impact.

Breaching the provisions of the Act could lead to fines, prison sentences and severe reputational damage.

What are the main parts of the Act?

The Act itself has 6 parts, the main sections being:
Part 2 – which sets out the role and scope of the Building Safety Regulator
Part 3 – which amends the Building Act 1984
Part 4 – which sets out a more stringent regime for higher risk buildings
Part 5 – which covers a range of areas including construction products liability

Bear in mind that although the Act is important, much of the detail, including, for example, the new duty holder regime is contained in secondary legislation. It’s not just about the Act.

Part 2 – Main Headlines

From what buildings the new regime applies to, through some of the main changes proposed, we consider the bigger picture behind the Act and the new building safety regime.

It is crucial to recognise that the Act’s general provisions, including some of the secondary legislation, are applicable across all sectors of the construction industry. These general provisions extend to most buildings and most professionals within the industry. This comprehensive scope aligns with the Act’s fundamental goals: enhancing safety, ensuring compliance, verifying the competence of industry workers and requiring everyone to take personal responsibility.

Certain sectors, particularly those involved in the design and construction of higher-risk buildings, will be subject to a more stringent regime, but many of our clients still believe that the entire piece of legislation is solely focused on these higher-risk buildings. It isn’t. We will explore the specific requirements of the higher risk regime in greater detail later.

While the Act primarily applies to England, elements of the regulations are in place for Wales and Northern Ireland. Scotland generally adopts a different approach, although some aspects of the Act are relevant there too.

The Act brings substantial reforms to laws and regulations concerning the built environment. It impacts all stakeholders in buildings, from enhancing the rights and protections of residents and homeowners to ensure safer homes, to offering leaseholders more safeguards against the costs of rectifying historical defects.

For the construction industry, the changes are profound, encompassing the design, construction, maintenance, and safety of residential buildings.  Key changes include:

  • A new regulator with oversight of safety standards on all UK construction projects, with an enhanced regulatory role for high rise residential buildings.
  • A new regulator and framework for construction products.
  • New duty holders with significant responsibilities.
  • Strengthened protections for leaseholders, particularly concerning historical cladding issues.
  • Emphasis on industry competence, mandating proof of expertise and verification of individual competence.
  • A rigorous regime for higher-risk buildings (put simply, high rise residential buildings), encompassing:
    • The ‘golden thread’ of information
    • Planning gateways
    • Safety case systems
    • Mandatory occurrence reporting

These topics will be addressed in our forthcoming FAQs.

The Act and its associated legislation aim to transform the culture of the construction industry.  It’s about fostering a sense of collective responsibility among those who plan, design, construct, and supply products for the construction industry.  The goal is to create an environment where every professional is accountable for their work and its impact on others.  This shift towards a culture of responsibility and collaboration is at the heart of the new legislative framework.  Time will tell if it achieves these lofty goals and how the legal and insurance framework will need to change in order to support it.

Part 3 – Higher risk buildings

Higher risk buildings are an important feature of the new legislation and they have attracted the most commentary in the press. We consider how a higher risk building is defined and what working on a higher risk buildings means.

The new safety regime differentiates between:

  • Higher risk buildings during their design and construction. A higher risk building for this part of the regime in one which:
    • is at least 18 metres in height, or has a minimum of 7 storeys and either
    • contains at least two residential units, or
    • is a hospital or care home.
  • Higher risk buildings during their occupation. A higher risk building for this part of the regime is one which:
    • is at least 18 metres in height or has at least 7 stories and
    • contains at least two occupied residential units

Buildings will be excluded from the definition of higher risk buildings during their design and construction if they are used in their entirety as a:

  • secure residential institution;
  • hotel; or
  • military barracks and living accommodation for military personnel.

Buildings will be excluded from the definition of higher risk buildings during occupation if they are used in their entirety as a:

  • hospital;
  • care home;
  • secure residential institution;
  • hotel;
  • military barracks and living accommodation for military personnel; or
  • prison.

One distinction between the two definitions is that whilst care homes and hospitals are not considered higher risk in the occupation phase (meaning that the enhanced requirements for managing structural and fire safety do not apply to these building types) they are higher risk for the design and construction phase.  The rationale here is that care homes and hospitals are covered under other legislation relating to fire safety in workplaces.  Hotels and secure accommodation generally have very different risk characteristics from residential buildings and military premises operate under a separate fire safety regime.

This is a subject which takes up a surprising amount of time in the regulations, which reflects the fact that the provisions will need to cater for lots of different building types. In general, 18 metres in height will be based on the height from ground level on the lowest side of the building, to the top of the floor surface of the highest occupied storey of the building.  Any storey which only contains machine or plant is excluded from the calculation.

All work on higher risk buildings is covered by a more stringent regime under the Regulations, meaning much more scrutiny from the regulator.  We’ll consider some of the specifics in a later FAQ.

Part 4 – the new duty holders – the Client

The new duty holder regime was introduced from 1 October in the Building Regulations etc. (Amendment) (England) Regulations 2023 (‘Amendment Regulations’).  This is a piece of legislation which substantially amends the extending Building Regulations 2010 (‘the Building Regulations’). These amended regulations will apply to all building work to which the Building Regulations apply, not just building work on ‘higher-risk’ buildings.

Let’s meet the new dutyholders:

The Client

The Client is any person or organisation for whom a construction project is carried out. The Amendment Regulations recognise a ‘domestic client’, with less onerous obligations placed on the them (see below).

The duties of a Client are found in 11A through 11E of the Amendment Regulations.  They are quite extensive, but in summary they:

  1. must make suitable arrangements for planning, managing and monitoring a project, including the allocation of sufficient time and resource, to ensure compliance with “all relevant requirements”.
    All relevant requirements appears throughout the Amendment Regulations and is defined in 11Q and essentially means the relevant parts of the Building Regulations.
    What does this mean in practice?  The HSE have given some guidance and say that this will mean that the Client will need to:
    – appoint the right people;
    – with the right competencies (if an individual: the skills, knowledge, experience and behaviours) or organisational capability (if a firm) for the work; and
    – ensure those they appoint have systems in place to ensure compliance with Building Regulations.
  2. Where there are several firms working on different aspects of the project, the Client will need to appoint a Principal Designer to be in control of design work and a Principal Contractor to be in control of building work.
  3. Provide building information to every designer and contractor on the project and co-operate with the other duty holders.

Alongside the entire professional and contracting team, the Client will now have a significant role in ensuring compliance with the Building Regulations, which ought to lead to a significant shift in behaviours.

Coupled with the changed application processes and level of information required when undertaking building work, the client will need to consider how their proposed building work will comply with the changed procedural requirements of the Building Regulations.

Whilst the technical requirements are largely unchanged, the Client will need to be in a position to understand and follow the changed procedural requirements as well as considering in more detail how the building will meet the requirements.

The HSE make it clear they expect the client to explain assumptions about the management and maintenance of the building once in use, as well as aspects such as the behaviours and characteristics of the residents.

What might the changed client duties mean for the professionals we insure?  It is too early to be specific, but we can expect:

  • Clients of all shapes and sizes are clearly going to need far more support during the design and construction process. We have said that a chief cause of claims against construction professionals for decades is ‘being too helpful’.  The way the Amendment Regulations are framed gives ample scope for that to continue.
  • It would be easy to say, therefore, that professionals must be cautious about stepping outside their scope. However, that sound (and still current) advice does need to be given in the context of the changing regime which invites – explicitly and implicitly – the team to co-operate with each other in a way they haven’t before.
  • For the foreseeable future, professionals would be well-advised to recognise the tension here, and remain aware of the new obligations, but mindful of the potential consequences and contractual parameters and ensure that written records are kept of all engagements with clients.
  • This could be an opportunity to reset and lift what for some have become relationships best characterised as transactional, to a level, once again, where professionals are the ‘client’s trusted advisers’.

Domestic Client

These are clients, not acting in the course of business, for whom a project is being carried out.

  1. Where multiple firms are working on different aspects of a project, they should appoint a Principal Designer to be in control of design work and a Principal Contractor to be in control of building work. If they don’t do that, then: the designer in control of the design phase of the project is the Principal Designer and the contractor in control of the construction phase is the Principal Contractor.
  2. They must provide information that they have, or such information as it would be reasonable for them to obtain, to the other duty holders. They must also co-operate with others to allow them to discharge their duties.

Bear in mind where the client is a ‘domestic’ client, certain duties fall to either the contractor, or the Principal Contractor. The Principal Designer can also agree to take these on. Where the client fails to appoint a Principal Designer, that role falls to the designer in control of the design phase of the project automatically.

Lay clients are obviously going to need a greater degree of assistance and that needs to be considered in the amount and nature of resource that is allocated to these projects.

Part 5 – the new duty holders – the Designer

Any person who, in the course of business, carries out design work or who arranges or instructs a person under their control to do so.

Designers’ obligations are primarily outlined in sections 11J and 11K of the Amendment Regulations, encompassing ‘general duties’ and ‘additional duties of designers’.

The general duties create overarching duties which require designers must:

  • take all reasonable steps to ensure the design work carried out by them and anyone under their control is planned, managed, and monitored so that the design is such that, if built, it would comply with the Building Regulations.
  • cooperate with the client, designers and contractors to ensure that the design is such that if the building work to which the design relates were built in accordance with the design the building work would be in compliance with the Building Regulations.

The additional duties on designers require that they:

  • must not start work, unless satisfied that the client is aware of their duties under the Building Regulations.
  • must take all reasonable steps to ensure the design is such that if the building work to which the design relates were built in accordance with that design, the building work would comply with the Building Regulations.
  • must take all reasonable steps to provide information about the design, construction and maintenance of the building to help others comply with the Building Regulations.
  • Where a designer is carrying out only part of the design of the building work on a project, they must consider other design work which directly relates to the building work and report any concerns as to compliance with the Building Regulations to the Principal Designer.
  • must provide advice, if asked, as to whether any work might be ‘higher risk building work’.

At first blush the words ‘take all reasonable steps’ in the overarching and main obligation on designers would broadly equate with a duty we could perhaps recognise as being generally imposed on professional people.  What is less welcome is that the Government say that this language is temporary, and they will be removing the ‘take all reasonable steps’ mitigation when they believe the insurance market has created insurance products and/or has the appetite to support its introduction.

In introducing an absolute obligation or, in the Government’s own words, a ‘strict liability regime’, a dangerous precedent will be set.  As we report here we will continue, along with many others, to try to argue that not only should the temporary inclusion of ‘all reasonable steps’ become permanent, but that the obligation should actually be ‘watered down’ further, to more accurately reflect the long-standing duty imposed on those providing professional services to exercise reasonable skill and care.

Consequently, on individual appointments, our advice is:

  • Watch out for contractual obligations that seek to replicate the requirements of the Amendment Regulations. If possible, avoid any obligations at all, since the law requires you to comply with them and their incorporation in contract is unnecessary.
  • We recognise that this is often an impossible task, so if clients are forced to accept such requirements, then they should be no more onerous than those contained in the Amendment Regulations.
  • Clients should keep an eye on guidance from the regulator as to what their expectations are.
  • The roles need to be adequately resourced, particularly with junior members of staff.
  • The duty under 11K(4) (to report concerns on others’ designs which directly relate to the building work) is potentially quite wide ranging. It will be interesting to see how the regulator sees this obligation being limited by circumstances and the scope of the individual appointment.  A small fee for a ‘minor’ element of design which interacts with various other components may create challenges, particularly for SMEs.

From the perspective of the operation of our client’s PI cover, a few points to bear in mind:

  • The new obligations impact everyone involved in designing buildings in England (and to a degree the devolved administrations). They are now a fundamental part of the liability landscape for construction professionals and insurers should be aware of what is required.
  • Consequently, we’d expect those undertaking the designer role to be covered in respect of civil liability claims with no additional underwriting action or additional information required.
  • Bear in mind that any action from the regulator will likely relate to criminal action, rather than civil claims. Prosecution defence costs cover may be available.
  • For some clients (particularly those who aren’t on our construction scheme facilities) there are some additional concerns:
    • Negligence only policies
      The phraseology of the current requirements arguably could still fall within the cover provided by such polices, though ultimately each set of circumstances will turn on its facts.  When – and if – the mitigating language is removed and the ‘strict’ liability regime introduced, the potential for coverage disputes will be greatly increased.  Can the cover be improved generally, or a write-back be agreed?
    • Restrictive business descriptions/insured services
      Some open market policies can contain business descriptions that might not cater for the new roles and equally insured services might also not be drafted widely enough to catch this work.  We need to review and amend as necessary.
    • Prosecution defence costs cover
      Some open market policies specify an exhaustive list of regulations for which they’ll provide defence costs cover.  If that doesn’t include these latest regulations, then amendment may be required.  We should review and liaise with insurers to expand the scope of the regulations if necessary.

 Part 6 – the new duty holders – the Principal Designer

They are a designer appointed by the client on projects involving more than one contractor.  They could be either an organisation (who must also appoint a designated individual to manage the functions of the Principal Designer role) or an individual with sufficient knowledge, experience and the ability to carry out the role and its functions.

The role is different from the same titled role under CDM, which is primarily concerned with planning, monitoring and managing pre-construction health and safety matters. The Principal Designer under the Act’s role is much wider and, broadly speaking, deals with planning, managing, monitoring and co-ordinating design work compliance to secure the safety of people in buildings, and generally to improve the standard of buildings. Their statutory duties are found in 11J and 11M of the Amendment Regulations.

In summary, the statutory functions provide that they must:

1) plan, manage and monitor the design work during the design phase.
2) coordinate matters relating to the design work so that all reasonable steps are taken to ensure that the design is such that, if the building work to which the design relates were built in accordance with that design, the building work would be in compliance with the Building Regulations.
3) take all reasonable steps to ensure designers, and any other person involved in relation to design work, cooperate with the client, the Principal Designer, the Principal Contractor and each other.
4) take all reasonable steps to ensure the design work of all designers is coordinated so that the design is such that if the building work to which the design relates were built in accordance with that design the building work would be in compliance with all relevant requirements.
5) take all reasonable steps to ensure designers, and any other person involved in relation to design work, comply with the duties under these Regulations.
6) liaise with the Principal Contractor and share information relating to the building work.
7) if requested help the client provide information to others.
8) if they are a replacement Principal Designer, review previous arrangements.

Whilst there are elements of the role which will undoubtedly call for a high level of administration, the role is anything but administrative. PAS8671:2002 Framework for competence of individual Principal Designers – Specification makes it clear that you can’t fulfil the role by simply regarding it as a box ticking exercise.

In practical terms, the PAS says that Principal Designers are expected to appraise and challenge design work in a way that helps designers to reach consensus on compliance

The role itself is clearly broadly framed and at least initially will present those taking it on with a steep learning curve.  Coupled with the absence of guidance from the regulator and the scramble for institutional bodies to catch up, this means that the role is still far from being widely understood.

The contractual landscape is also very fluid, with little guidance as to what might be desirable, or otherwise.

For the moment, the advice is that:

  • As with the designer role, the role of the Principal Designer is now one which is a fundamental part of the construction landscape. Principal Designers will now need to be found for an enormous number of projects.
  • Despite this, we have received a number of questions from clients around the role and it is clearly causing industry some concern. Whilst we can’t cater for every client on every project, generally speaking:
    • The Principal Designer role is one which we’d expect many of our clients to want and/or be required by the end client to undertake. Also, there are circumstances where a designer could automatically become the Principal Designer.
    • We would expect that for insureds under the scheme facilities any civil liability claims based on a breach of the functions of the Principal Designer role would be covered. Bear in mind that any action from the regulator will more likely relate to criminal action, rather than civil claims.  Prosecution defence costs cover may be available.
    • From the perspective of our scheme safety net, the key difficulty is the uncertainty around the role; how it will ultimately sit in the context of the new regime; what the role actually means in liability terms; and fundamentally what the claims experience proves to be. The last will not be a known factor for 5 years or more.
    • If the role becomes a liability dumping ground, then it is likely that, in time, the market will react. By increasing premium and lowering its exposure using the levers we all know about.  At present, there is no sign of either feature being present in our scheme insurers’ minds.
    • For our clients who are placed in the wider market, the following aspects should be considered:
      • Renewal presentation
        Are we confident that the insurer is sufficiently aware that this is an activity that the insured may undertake?  What does the last presentation say?  If it’s not reasonable to assume that this is the case, we may want to check with the insurer.
      • Restrictive business descriptions/insured services
        Some open market policies can contain business descriptions that might not cater for the new roles and equally insured services might also not be drafted widely enough to catch this work.
      • Prosecution defence costs cover
        Some open market policies specify an exhaustive list of regulations for which they’ll provide defence costs cover.  If that doesn’t include these latest regulations, then amendment may be required.
      • Negligence only policies
        The phraseology of the current requirements arguably could still fall within the cover provided by such polices, though ultimately each set of circumstances will turn on its facts.  When – and if – the mitigating language is removed and the ‘strict’ liability regime introduced, the potential for coverage disputes will be greatly increased.
      • General outlook
        Much like the scheme insurers, the wider market will need time to digest the role, liabilities and, in time, react accordingly.
  • Firms will need to ensure that they understand and have the competence requirements required by the Amendment Regulations (11F, 11G) and that they ensure that the individuals undertaking the functions on their behalf can comply too.  There is a considerable amount of detail in relation to ‘competency’ and a separate PAS that deals with the competency thresholds that individuals are expected to meet when delivering the functions of the Principal Designer duty holder role.

 Part 7 – the new duty holders – the Contractor

Any person (including a client, but not a domestic client) who, in the course of a business, carries out, manages or controls any building work.

Much like designers, they have general, overarching duties and additional duties under 11J of the Amendment Regulations.  These require those undertaking building work to:

  • Ensure the work carried out by them is planned, managed and monitored so as to comply with the Building Regulations.
  • Cooperate with others to the extent necessary to ensure that the work complies with the Building Regulations

They also have additional duties under 11M of the Regulations and they:

  1. must not start work unless satisfied that the client is aware of their duties under the Building Regulations.
  2. must ensure the building work they carry out complies with the Building Regulations.
  3. must provide each worker under their control with appropriate supervision, instruction and control.
  4. must take all reasonable steps to provide information to others to allow them to comply with the Building Regulations.
  5. where they are carrying out only part of the work, they must consider other work which directly relates to that which they are carrying out and report any concerns on compliance with the Building Regulations to the Principal Contractor.
  6. must provide information as to whether any work is higher risk work.

Other than where the designer’s duties have been reduced, the contractor’s obligations largely mirror the designer’s obligations, but in relation to the building work.

 Part 8 – the new duty holders – the Principal Contractor

A contractor appointed by the client to coordinate the construction phase of a project where it involves more than one contractor.

  1. They must plan, manage and monitor the building work during the construction phase.
  2. They must coordinate matters relating to the building work to ensure compliance with the Building Regulations.
  3. They must take all reasonable steps to ensure contractors and others cooperate with the client to ensure the work complies with the Building Regulations.
  4. They must take all reasonable steps to ensure the building work is coordinated so the work complies with the Building Regulations.
  5. They must take all reasonable steps to ensure contractors comply with their duties.
  6. They must liaise with the Principal Designer and share information.
  7. If requested, they must help the client in providing information to others.

For now, unlike the designer, or the Principal Designer, many obligations on contractors or the Principal Contractor are absolute/strict.  This more closely aligns with their obligations that existed previously.

The inter-locking and mirrored roles of designer, contractor, Principal Designer and Principal Contractor have been created to provide each of them with statutory obligations to deliver compliance with the Building Regulations.  Achieving the ‘relevant requirements’ of the Building Regulations appears as a duty at least 34 times in the Amendment Regulations.

The acid test of whether it is successful will be the extent to which the new regime fundamentally changes the liability environment for those involved in construction.  Will it properly allocate risk and responsibility to those most able to manage?  Or will the burdens be simply overlaid on top of existing contracts and liability allocations which all too often see those with the deepest pockets being called on to fund the mistakes which should rightly sit elsewhere?

This is the dilemma of the new regime.  If it works and if change comes, then Government will have delivered something genuinely transformational.

If it doesn’t and professionals in particular are simply left to grapple with new liabilities on top of those which are already placed upon them, then the future might be a difficult one.

 Part 9 – the Golden Thread of information

The ‘golden thread’ is an important part of the new safety regime. We ask what it is and what goes into it.

As part of the more stringent regulatory regime for higher risk buildings, duty holders and Accountable Persons will need to create and maintain a golden thread, throughout a building’s life cycle.

As a building is developed, the relevant information must be kept showing, amongst other things, how the building complies with the Building Regulations. This golden thread contains all the information about a building that allows someone to understand it and keep it and everyone in and around it safe, now and in the future.  It also relates to the information management systems that ensure the information is accurate, easily understandable, can be accessed by those who need it and is up to date.

The golden thread of information will ensure building owners have to hand well-documented and accurate evidence of their risk assessments and safety arrangements, as well as the documentation supporting these.

This will make it easier for them to manage safety information and provide assurance to the regulator and residents, which demonstrate that effective and proportionate measures are in place to manage risk and keep residents safe, without the need for further costly surveys or discovery work.

The golden thread will support the safety case approach the Government is introducing by ensuring information is accessible, accurate and up to date. This ‘safety case approach’ sees those accountable for higher risk buildings ensuring reasonable steps are taken to manage fire and structural safety risks through prevention, control and ongoing management. They must set out and justify their approach in their safety case report, which will be assessed by the Building Safety Regulator.

The Government set out 10 golden thread principles, but the key themes are:

  • It must be accurate and trusted so that people can use it. Various stakeholders, from those designing and constructing the building, the regulator and the building owner and its residents must be able to use it confident that it is accurate, appropriately structured and with clear change control procedures setting out how and when information is updated and who needs to check it.
  • It will support culture change by increasing competency and capability, focusing minds on information management control and collaborative working.
  • It will be the building’s single source of truth. It will record changes to the building and the reasons, dates and decision-making processes and drive accountability.  At every level there are clear duties for creating and maintaining the thread to meet required standards.
  • It must be kept digitally.
  • For now, it only applies to higher risk buildings. That will likely change as industry becomes familiar with the new workflows.

 Part 10 – the Gateways

Three new gateways are part of the new regime for higher risk buildings. They will bring about a whole new way of working through building control. We consider the requirements of the three gateways, key risks for clients and recommend some mitigating actions.

The Building Safety Act introduces a new approvals process to ensure building safety has been fully taken into account during both the design and construction process.  This approvals process contains three ‘checkpoints’, or gateways, at which point the Building Safety Regulator will demand that duty holders evidence compliance with the Building Regulations.

The first gateway, in relation to the application planning stage, has now been in force for a little over 2-years.  It requires that any developer seeking planning for a higher risk building must evidence a comprehensive fire and structural safety report. This needs to evidence in detail how the design will meet the requirements of the new safety regime.

The second gateway, which replaces the ‘deposit of plans’ stage, is met prior to construction work being started.  Construction cannot commence until the Building Safety Regulator is happy that the plans meet the requirements of the Building Regulations.  This requires a building control approval application to be made to the Building Safety Regulator which requires the submission of certain prescribed documents. These documents include, amongst other things:

  • A construction control plan
  • A change control plan
  • Building Regulations compliance statements

The application must contain sufficient information to show how the building, when built, will:

  • Satisfy all applicable functional requirements of the Building Regulations.
  • Demonstrate how construction activity will be managed to build what has been described, including plans as to how this will be evidenced to support the gateway 3 completion certificate application.

The Building Safety Regulator will then determine whether the application is valid (there is no time limit for this) and then move on to considering whether the application will be granted, rejected or granted with requirements.  There are time limits for this part of the process, but they can be varied by agreement.

Importantly, if any changes are made to the approved plans, or if there are any changes to the approved documents, these must be recorded in the change control log and may be subject to further approval from the regulator.  Change control applications must include:

  • Explanations as to why the changes have been proposed
  • Lists of people whose advice has been sought
  • An assessment of the agreed documents affected by the changes.

The regulator sees changes as either ‘major’ or notifiable. The first is considered to be a change which would undermine the basis of building control approval and requires a separate application to the regulator for approval. The latter is a change which could potentially impact on compliance with the Building Regulations but requires only that the regulator be notified.

The third gateway comes before the building can be occupied at final completion.  This provides for a completion certificate application being submitted to the Building Safety Regulator which again requires certain documents, compliance declarations and the change control log.  The Building Safety Regulator then assesses whether the work has been completed in line with the Building Regulations.  The HSE say that the application must contain ‘sufficient information to show how the building conforms to the approved design and satisfies all the applicable functional requirements.  Duty holders must indicate their change control process and confirm that all changes have not changed their assessment of compliance.

A similar flow to gateway two is followed.  The Building Safety Regulator determines if the application is valid and then moves on to approve it or reject it.  If they are happy that it does evidence compliance, then the building is registered as a higher risk building, and it can be occupied.  The current timescale provides for a 12-week period for the regulator to approve an application for a Completion Certificate.  It is a criminal offence to occupy a building without a certificate.

 

One of the prescribed documents is a statement from the client confirming that to the best of their knowledge the building work complies with all applicable requirements of the Building Regulations.  There are also requirements for the Principal Contractor and Principal Designers to confirm that they have fulfilled their duties.

At first blush and without seeing evidence of how in practice the regime will work, it’s very hard to speculate what risks are likely to raise their head.  We would for the moment highlight the potential for the following:

  • Breach of the requirements – obviously if our clients don’t follow the new procedures there is the potential for the regulator to take enforcement action. This would be criminal cases in the courts.
  • The biggest ‘PI risk’ is likely to be for delay claims from end clients against our insureds. This may be linked to regulatory breaches, or simply that our insureds have cause the end client a problem in, for example, securing safe passage through one of the gateways.  For example, if our clients don’t provide the necessary documentation to the required standard, the end client may not be able to pass through gateway two and our client is likely to face a claim for delay.
  • Such claims are likely to be mitigated by the Building Safety Regulator taking a much earlier ‘hands on’ approach which should see problems caught earlier. At a ‘macro-level’ this should also improve the overall performance of the industry.

Our clients should be thinking about:

  • What is their role in relation to the new building control processes (i.e. the building control and completion certificate applications)? How is this reflected in their appointment?  Are their roles and responsibilities clear in relation to their involvement with the new regime?
  • If our clients find that there are issues with planning applications, or the completion certificate, then subject to their role on the project, they should consider warning the client, explaining the potential consequences, and asking for instructions in writing.
  • Government guidance is still minimal, and the hope is that new guidance will be issued soon. Our clients need to keep up to date.

 

 

 

 

 Part 11 – the Accountable Person

Although our clients are unlikely to take on the role of the Accountable Person, they are an important part of the new regime. We answer some essential questions about who they are and what they must do.

Part 4 of the Building Safety Act identifies the Accountable Person who will be known as ‘accountable persons’ for higher risk buildings. This will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies.  Generally speaking, they’ll be the:

  • Freeholder/estate owner/landlord
  • Right to manage company/management company
  • Resident management company/commonhold association

They’ll usually be an organisation or business but could also be an individual.

If a building has more than one Accountable Person, the Accountable Person responsible for the structure and exterior of the building will be the Principal Accountable Person. When buildings have a single Accountable Person, that entity or person is the Principal Accountable Person automatically.

The Accountable Person must take all reasonable steps to:

• prevent a building safety risk happening, with building safety risk defined as ‘spread of fire and/or structural failure’
• reduce the seriousness of an incident if one happens

As well as their duties as an Accountable Person, Principal Accountable Persons must:

• have registered existing buildings with the Building Safety Regulator (the deadline was October 2023)
• register all new buildings before occupation

It is an offence if a building is occupied but not registered after this date.

They must also:

• prepare a safety case report for the building. This is an important document and must show:
– that the Principal Accountable Person has assessed all building safety risks; and
– they have taken all reasonable steps to control them
• give the safety case report to Building Safety Regulator on request – the regulator will examine it during the building assessment
• apply for a building assessment certificate when directed by the Building Safety Regulator

Useful Links

Building safety | Griffiths & Armour

The new building safety regime

From consultation to implementation: the Government’s response

Construction | Griffiths & Armour

Building Safety Act

The first case?

BSA Essential Questions Answered | Griffiths & Armour

The Building Safety Act Headlines

BSA Potential Consequences | Griffiths & Armour

The BSA – Potential Consequences