Building safety – details of the design, construction and occupation regimes

On 17 August 2023, amongst other building safety developments, the government published further specific details of the new design,  construction and occupation regimes which will be introduced for higher-risk buildings (HRBs) from 1 October 2023 within England.

The new details published runs to over 600 pages. It is set out in a series of Regulations, explanatory memorandums, impact assessments and two government responses to consultations (which are likely to result in further Regulations).

Over the next few weeks, as those affected gear up to comply with the new regime, everyone will need to get to grips with the detail contained in these publications and how it may affect them. 

This Insight takes a look at what has been published so far in relation to the design, construction and occupation regimes and what happens next.

Key publications

HRB design and construction regime

A key pillar of the Building Safety Act (BSA) is the introduction of a stringent regulatory framework to oversee the design and construction of HRBs.

The government set out its proposals for this regime in a specific consultation in July 2022 (which ran for three months). On 17 August of this year, the government published a response to this consultation which confirms how the regime will operate in practice together with the Regulations which will implement this regime. It is clear more guidance and Regulation will follow shortly. However, a summary of what has been published thus far is set out below:

Government response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings

This sets out the government’s intentions in relation to:

• transition (including which buildings will fall within the new regime on 1 October);
• the new duty holder regime;
• the golden thread;
• Gateways 2 and 3;
• building work carried out in existing higher-risk buildings;
• regularisation of unauthorised building work;
• change control and mandatory occurrence reporting; and
• Building Safety Regulator (BSR) enforcement powers, BSR notices and wider changes to the building regulations to align the existing system with the new system.

Legislation to implement response

The recommendations in the response will be implemented through The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 and The Building Regulations etc. (Amendment) (England) Regulations 2023).

These were laid before Parliament on 17 August 2023 (via the negative resolution procedure) and, assuming they are not annulled, these will come into force on 1 October 2023.

The Regulations were accompanied by impact assessments and explanatory memorandums which contain some further detail on their operation:

The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (SI 2023/909) (Explanatory memorandum and Impact Assessment)

• These Regulations specify the detail of the HRB design and construction regime for both new and existing HRBs.
• They provide detail on the golden thread, mandatory occurrence reporting and handover of information at completion, Gateways 2 and 3 and transition. They also provide detail on the change control process inspections, testing and sampling, regularisation of unauthorised work, reviews and appeals of BSR decisions and exempt work.

The Building Regulations etc. (Amendment) (England) Regulations 2023 (SI 2023/911) (Explanatory Memorandum and Impact Assessment)

• These Regulations are part of a package of Regulations to implement changes to the building control system and deliver improvements across the entire built environment. Of key importance is the inclusion of Regulation 6 which implements the dutyholder regime.
• These Regulations also introduce BSR notices. These can be used where a project comprises both HRBs and non-HRBs to allow developers to use a single building control body. 
• In addition, the Regulations introduce a new definition of ‘commencement’ of work for existing and new buildings, and automatic lapse of building control approval after three years from when the building control approval was granted, for projects that do not meet the definition of commencement. They also strengthen the fire safety information handover for buildings where the Fire Safety Order applies. This will need very careful consideration.

HRB occupation regime

Another fundamental part of the BSA is the introduction of a framework for the oversight of the occupation of HRBs.

As with the design and construction regime, the government had published a consultation in July 2022 which set out its proposals for how the regime would operate. The consultation closed in October 2022 but unlike the design and construction consultation, the government was swifter in its response to this consultation and some details of how this regime would operate were released at the start of the year. In addition, certain Regulations required to bring the regime into force were passed, and the regime partially came into operation in April 2023 with the advent of the accountable person (AP), and registration of existing HRBs, and submission of key building information. However, substantial detail was still awaited.

Happily, with the full regime due to come into force on 1 October, we now have some of the missing parts of the jigsaw, although it is clear the government intends to publish further Regulations and guidance.

On 17 August, the following was published:

Government response to building certification, safety case approach, mandatory occurrence reporting, residents’ voice, the golden thread, appeals, enforcement, and key building information

This response covers:

• building assessment certificates;
• principles that APs and principal accountable persons (PAPs) must follow in setting their arrangements for managing building safety risks
• new regulatory requirements for reporting certain fire and structural safety issues to the BSR; 
• detail on:
  • the operation of the residents’ engagement strategy;
  • the PAP complaints system;
  • contravention notices; and
  • the golden thread storage and management during occupation.

The response also covers the BSR enforcement regime, the decisions that are eligible for internal review by the BSR, and procedural and administrative matters relating to further appeals to the First Tier Tribunal.

Legislation to implement response

Some of the contents of the Response will be implemented by the The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 (SI 2023/907)  (also, Explanatory Memorandum  and Impact Assessment).

These Regulations set out provisions that the BSR, PAPs, APs, residents and others must follow in relation to the occupation of a HRB.

In particular, they include details on a safety case approach to managing fire and structural safety, duties to engage, consult and provide information to residents, the golden thread, mandatory occurrence reporting and provisions on compliance and appeals.

The Regulations also make minor edits to the Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 including the requirements for removal of buildings from the BSR register.

The response also mentions a draft Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2023 but these have not yet been published. These will set out, among other things, the information that an AP must provide on request from a resident or owner under s92 of the BSA and the rules applicable to such provision.

Also published…

The government did not only publish details on the design, construction and occupation regimes on 17 August but also published the following Regulations:

The Building Safety Act 2022 (Consequential Amendments Etc.) Regulations 2023 (SI 2023/908) (see also Explanatory Memorandum)

These Regulations replace references in primary legislation to the deposit of plans with references to applications for building control approval, and update local acts. Previously published as draft Regulations, they helpfully contain no changes to those previously published.

The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023 (SI 2023/906) (see also Explanatory memorandum and Impact Assessment)

Another key part of the BSA is that from April 2024 the BSR will be the building control authority for HRBs and local authorities and approved inspectors (who will be replaced by registered building control approvers) will not be able to supervise HRB work. 

The government also published a response on this new regime on 17 August (Government response to the consultation on changes to the building control profession and the building control process for approved inspectors (in future to be known as registered building control approvers)) and this sets out much of the detail as to how it will operate.

These Regulations are part of a package of statutory instruments that will make provision for the implementation of the new oversight regime for building control bodies and building control inspectors.

Next steps

The new design, construction and occupation regimes come into force on 1 October 2023.

Those affected should now familiarise themselves with the detail of the regime as outlined in this Insight (these changes implement significant change). In the meantime, we expect more guidance and further Regulations to be published and will update you once we have sight of it.

Please get in touch if you have any questions.

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Daniel Paul contributed to this insight

A version of this article was published in PLC Construction on 23 August 2023