Changes expected into 2025 as new building safety regime beds down

The main provisions of the Building Safety Act 2022 (BSA) came into force in England and Wales in October 2023. During 2024, the industry has started to see how those provisions have operated in practice. One area of concern is possible capacity issues in relation to the new approval system for higher-risk building (HRB) applications.

The HRB regime is an important aspect of the BSA, introducing a more stringent regulatory framework for the design and construction of HRBs. For example, the new regime requires the developer of the project to obtain “building control approval” from the Building Safety Regulator (BSR) prior to commencing development work. The so-called “Gateway 2” approval is to ensure that the building’s design is safe before building work starts.

According to a report by Inside Housing, based on data from a Freedom of Information request submitted by the Fire Association regarding the approval rate of applications by the Building Safety Regulator (BSR), there appears to be a low number of Gateway 2 applications being approved.

The report said that between 1 October 2023 and 16 September 2024, 1,018 Gateway 2 applications were received for both new and existing HRBs, but only 146 applications were signed off by the BSR as ‘compliant’ – which is required for work to start on site. About 25 applications for Gateway 2 were rejected and the status of the remaining 847 was unknown. Therefore, on average only 14% of applications are being signed off by the BSR, the report noted.

Several causes may have resulted in this seemingly low approval rate. It could be that the BSR does not yet have the capacity it needs to process the applications received. An unusually high number of applications may have also contributed to the slow approval rate. In addition, the application process, including what is required for an application to be accepted, is not yet well understood by the applicants. The introduction of the BSR regime is a significant change and the period of “bedding in” may be inevitable due to the combination of these factors.

However, the BSR is actively investigating a number of building safety and health and safety issues relating to the construction of HRBs.  The year 2025 is likely to see the first enforcement activity from the BSR.

Recommendations made by the Grenfell Inquiry

The final report from the public inquiry into the Grenfell Tower fire was published on 4 September. Known as the Grenfell Phase 2 Report, it contains 58 recommendations of relevance to a wide range of organisations – from the fire service to social housing providers, as well as businesses involved in the construction of buildings in the UK.

The report’s message is that the package of reforms implemented by the UK government in response to Dame Judith Hackitt’s independent review of building regulations and fire safety carried out in the immediate aftermath of the Grenfell fire has not gone far enough. Although the Hackitt review led to seismic changes in the way that building control, testing and certification of construction products, and occupied HRBs are regulated in England and Wales, the report found that the BSA did not resolve the fragmented approach to regulation. It recommended that nothing short of a single construction regulator, bringing together all of the disparate areas of regulation overseen by different parts of the government, will resolve this problem for the future.

The UK government has not yet published its response to the recommendations in the final report, but further changes in building safety and to the overall construction regulatory framework should be expected. Even if some of those recommendations are introduced – especially the introduction of a single construction regulator – they will take some time to consider and implement.

Remediation of unsafe cladding

Remediation works for unsafe buildings with dangerous forms of cladding will continue to be a theme for the UK’s infrastructure and real estate sector in the coming years. The National Audit Office (NAO) has recently published a report summarising the progress that has been made since 2019, when the Ministry of Housing, Communities and Local Government (MHCLG) announced £600 million to support the remediation of high-rise buildings with unsafe cladding.

The report noted that remediation works on most tower blocks over 18 metres with the most dangerous form of cladding are now completed or nearing completion. However, the scale of the task still to be completed remains significant. The report stated that works on unsafe buildings over 11 metres are to be completed by 2035 based on the MHCLG’s estimates. The total taxpayer funding commitment to those works now stands at £5.1 billion. By August 2024, £2.3bn of the budget had been spent. Work relating to the remediation of buildings over 11 metres, especially in England, is expected to continue at pace, as it is a long-term project that may last another decade.

To accelerate the remediation process, the government recently set out clear new targets to fix unsafe buildings in England. The new measures are aimed at getting buildings fixed more quickly and holding accountable anyone who is not making progress by introducing significantly tougher penalties.

Under the government’s remediation acceleration plan, all buildings over 18 metres with unsafe cladding in a government-funded scheme will have to be remediated by the end of 2029. All buildings over 11 metres with unsafe cladding must either have been remediated or have a date for completion by the end of 2029 – otherwise, the government has warned that landlords will be liable for “severe” penalties.

Developments in Scotland

One of the key developments in Scotland’s construction sector to watch in the new year is the application of the Housing (Cladding Remediation) (Scotland) Act 2024, which was enacted in May 2024. The Act gives powers for Scottish ministers to establish a Cladding Assurance Register that will provide information on buildings that have been through a Single Building Assessment (SBA) and any remediation that may be required. It also sets the legal foundation for a Responsible Developers Scheme, which will provide for developers addressing or contributing to remediation costs.

Those powers, and others, already exist in England and Wales, after being introduced by the BSA.  In Scotland, however, they are not yet in force, and there is no clear timeline for their implementation. The Scottish government is expected to announce how and when Scottish ministers will use the powers given to them by the Act in 2025.