The implications of the Building Safety Act are becoming clearer

The Department for Levelling Up, Housing and Communities (DLUHC) has recently published a host of consultations in relation to the Building Safety Act 2022 (BSA). The consultations give us further insight into the developing BSA process and how some of the secondary legislation will work alongside it. Although many will be away on their summer holidays, there is still time for the industry to respond before the deadlines in October.

It seems that we are now at the penultimate step before the first requirements come into force next April. Therefore, subject to the consultation feedback and any resulting changes, the content of the consultation documents could be seen as the BSA process that the industry has to follow. However, we should all be cautious as there have been changes at every step of the process over the last few years as this very important legislation has evolved.

It is clear from one of the consultation documents that Gateway 2 and Gateway 3 are no longer proposed in such formal terms - instead they become informal “gateway points”. The application process for works related to High Risk Buildings is clearly set out; a Building Control Approval Application (this was Gateway 2) is made to the Building Safety Regulator (BSR) which then has 12 weeks to determine it. If this application is approved then work on site can proceed subject to any specific BSR requirements (this appears to be conditions attached to the approval).

The BSR will undertake onsite inspections according to a programme agreed at the application stage. During the works, applications must be submitted to the BSR in relation to any design changes. These changes come in two forms: Major, which is a 6 week approval process and until it is approved then work in relation to this matter cannot proceed, and Notifiable whereby if the BSR has not responded within 10 days, work can proceed at no risk. Major applications may therefore cause delay to development projects.

At the end of the construction work, a Completion Certificate Application (this was Gateway 3) is made to the Regulator. This can be for the whole building or part of it. Once approval is received then the Building Control process is complete. The Client or Principal Accountable Person then has to apply to the BSR to register the building for occupation. The building cannot be occupied until this further step is complete.

Whilst DLUHC is consulting on the legislation, the Health and Safety Executive (HSE) as the BSR is consulting on the secondary legislation which will enable it to charge fees for the services it provides in relation to the BSA and Building Act changes. The Building Safety (Fees and Charges) Regulations is the proposed legislation which will allow the BSR to charge for certain services in England, although the BSR enforcement powers also cover Wales.

But is the industry ready?

The BSR will largely be operating a cost recovery model, something that the HSE is very accustomed to. Some elements of the BSR’s role will be funded by Government such as policy development and those not directly related to duty holder activities. The legislation is accompanied by a charging scheme which sets out what will be charged for, the mechanism for charging and who will pay. Charges for the applications I set out earlier will be fixed charges, whereas other services such as reviews and appeals will be hourly rate charges.

We do not yet have the actual charges or rates so one cannot comment on how they compare to current building control fees, but many developers will be waiting for these figures to see what impact they have. Besides the two main applications, fees will also be charged for change applications, approval of materials, registering a building (required for all existing and new build high risk buildings from April 2023), Safety Case reviews and investigations into Accountable Persons if required during the occupation phase.

As we move ever closer to the introduction of this important and complex legislation, there is now light at the end of the regulation tunnel. Each time more information is published it is becoming easier to understand the requirements. But is the industry ready? With 9 months to the introduction of the first stages of the legislation there is still much to prepare for, especially for existing building owners who must register their High Risk Buildings next April, whilst scrambling to meet all of the other recent fire safety legislation.