DLUHC finally publishes the new HRB Building Control Regulations and its Response to the 2022 Consultation on reforming the regime

Asif Patel, Sasha Pirbhai and Tom Humphrey give an initial overview of this significant legislative development.

Almost 16 months have passed since the landmark Building Safety Act 2022 (BSA) received Royal Assent. Two of its key features are the implementation of a new (and more stringent) regulatory framework governing the building control process for higher-risk buildings in England (commonly referred to as ‘HRBs’ and encompassing tall residential blocks falling within a statutory definition, which we explain in The new framework for HRBs takes shape) and the making of a number of important changes to the Building Regulations that apply to all buildings.

Along with the entire construction industry in England, we have been waiting for the secondary legislation to appear – the statutory instruments that will give effect to the new framework and the various interlinking regimes that form part of it and include ‘the Gateway process’, the ‘golden thread’ of building safety information (and the steps needed to keep both the building and people safe both now and in the future), ‘mandatory occurrence reporting’ (which is increasingly being referred to as ‘MOR’) and the creation of new regulatory dutyholder roles, which will apply to all buildings and not just HRBs.

Throughout the year, the Department for Levelling Up, Housing and Communities (DLUHC) maintained its commitment to roll out the framework this autumn. Throughout the year, industry bodies and stakeholders expressed concern at the lack of clarity.

On Thursday 17 August, DLUHC published both the long awaited and much anticipated Response to the Consultation on the new Building Control Regime for HRBs and wider changes to the Building Regulations. The Consultation closed in October last year (and DLUHC had promised to publish its Response in January). The document is lengthy and the Government responses are detailed.

In addition, the Government also published a number of important new statutory instruments which will together operate to give effect to the new framework:

The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

The BSA introduces a new regulatory regime for the building control profession under which approved inspectors will be replaced by registered building control approvers. The purpose of these regulations is mainly to amend the Building (Approved Inspectors etc.) Regulations 2010 to support the new HRB control regime; amendments made to the Building Act 1984 by the BSA provide for the new Building Safety Regulator (BSR) to be the only building control authority for all HRBs in England. Local authorities and approved inspectors will not be able to supervise HRB work.

The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023

The amendments in this instrument mainly replace references in primary legislation to the deposit of plans with references to applications for building control approval being made. These Regulations also include consequential amendments that reflect that the BSA transfers procedures for appeals under the Building Act 1984 from the magistrates’ court to the to the First-tier Tribunal.

The Building Regulations etc. (Amendment) (England) Regulations 2023

Tucked away discretely in Regulation 6 is the new dutyholder regime which will require design and building work to be carried out in accordance with the Building Regulations and include competence requirements. We had anticipated a separate set of Regulations altogether that would resemble the Construction (Design and Management) Regulations 2015. Instead, a very important feature of the BSA will be brought into force through changes to the Building Regulations themselves. 

The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

This document contains the finer detail that relates to new HRBs, works to existing HRBs, the effect of making changes both before and during construction, MOR, inspections and completion, the golden thread and information handover – and the all important issue of transitional arrangements; the transitional period will run from October 2023 to April 2024.  

The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023

In our earlier briefing The new framework for HRBs takes shape, we explained the new ‘in occupation’ dutyholder roles of accountable person (AP) and principal accountable person (PAP). These new regulations set out the detail concerning a number of duties of APs and the PAP – including in relation to building assessment certificates (BACs), the on-going management of building safety risks (we now have a definition of the “prescribed principles” in accordance with which APs are to operate), producing safety case reports (SCRs), MOR (separate from the design and construction phase MOR), changes in the identity of the AP, the residents’ engagement strategy, the PAP having to put in place a PAP complaints procedures, information management and dealing with requests for further information and contravention notices.

With the bank holiday weekend approaching, don’t forget the 1 October 2023 deadline: Act Now: Registration of Higher Risk Buildings!

There is a large amount of detail to be processed, and a very short time (30 working days) before many of the changes come into force on 1 October. DLUHC has presented the real estate sector and construction industry with an unprecedented timetable. We are rolling up our sleeves to work with our clients: do look out for future Insights and upcoming webinars.