Developers get clarity on building safety process for ongoing projects

A raft of new building safety regulations, newly published, will take effect on 1 October – including new rules specific to ‘higher-risk’ buildings. Guidance has also been published to help businesses understand their obligations under the new regime.

Higher-risk buildings are defined under the 2022 Building Safety Act as buildings in England containing at least two residential units and which either measure at least 18 metres in height or are at least seven storeys tall.

Among the latest tranche of regulations published are new rules that concern the new building control regime for higher-risk buildings, which provide for a new system of building control built around the concept of ‘gateways’. Developments must pass through these gateways at three core stages of projects – planning; prior to construction; and upon the completion of works and prior to buildings being occupied.

While ‘gateway one’ in respect of the planning stage is already in force, gateways two and three will not take effect until 1 October. Specific requirements in relation to higher-risk buildings will need to be met to gain approval from the Health and Safety Executive (HSE), the building safety regulator, for those developments to pass through each of the gateways.

One aspect of the regulations is the transitional arrangements that will apply to higher-risk building projects which have already started but will not be complete until after the gateways take effect.

Building safety expert Katherine Metcalfe of Pinsent Masons said there had been criticism from industry of the original transitional arrangements proposed by government, but that industry would welcome the clarity that has now been provided.

The transitional arrangements provide for the building works to be completed under the current procedural rules using the current approved inspector, subject to four conditions being satisfied.

First, an initial notice must have been given to a local authority or full plans must have been deposited with the local authority before 1 October.

Second, work must be “sufficiently progressed” by 6 April 2024.

Third, the approved inspector must be registered as a building control body by 6 April 2024.

Fourth, the person carrying out the work must notify the local authority no less than five days after the point the work is considered to be sufficiently progressed, and before 6 April 2024.

For new higher-risk buildings, “sufficiently progressed” means the placement of permanent foundations has started.  This means the pouring of concrete for the permanent placement of the trench, pad or raft foundations or the permanent placement of piling has begun.

For building work to an existing higher-risk building or a material change of use, “sufficiently progressed” means that work has started.

The transitional arrangements apply to individual higher-risk buildings.

Metcalfe said: “We urgently needed to understand what the transitional arrangements would be for developments already underway, so the publication of the legislation is a most welcome end to that uncertainty.”

“The test that work must be ‘sufficiently progressed’ to allow the building to be finished under the current building control system is a much more achievable bar than the government’s original proposals. There will still be some tricky issues to resolve in larger schemes involving a number of buildings, as each individual building needs to be sufficiently progressed by April 2024. Those that are not will come under the jurisdiction of the new building safety regulator,” she said.

A panel of Pinsent Masons experts will discuss the changes to the building safety regime at a webinar on 13 September - register now.