We are revisiting the Building Safety Act 2022 (BSA 2022) and building control-related matters in today's festive countdown. The BSA 2022 has instigated many changes to the building control regime, including requiring several new notices to be given to the relevant building control authority as building works proceed. In this blog we summarise the key notices that must be issued to ensure compliance when carrying out building work which is subject to the building regulations.
Initial application
Building control applications will, of course, still need to be submitted where the applicant intends to construct a building or carry out works which are subject to the building regulations. If the works involve work to a higher-risk building (HRB) (ie one which is at least 18m/seven storeys in height, containing two or more residential units or a hospital or care home) a "gateway 2" application will need to be made to the Building Safety Regulator (BSR). For non-HRBs (where the BSR is not the building control authority), full plans can be submitted to the local authority, or an initial notice can be submitted by an Approved Inspector/Registered Building Control Approver (RBCA) (see yesterday's blog).
Intention to start
The new regime requires two notices to be served on the relevant building control authority (ie the local authority or the BSR, as applicable) during the early phases of the project, (i) before starting work, and (ii) when the work has commenced.
A notice of intention to start work needs to be given at least two working days before non-HRB work starts. For HRB works, the notice period is longer at five working days. The Building Regulations 2010 do not define what constitutes "starting" work, however, other government guidance confirms that starting work will involve undertaking any element of the permanent notifiable work (as described in the building control application or the initial notice given by the Approved Inspector/RBCA).
Commencement
A notice then needs to be given to the relevant building control authority when work has commenced as defined in the regulations. This notice must be given no later than five working days after the date when the work is considered commenced (for both HRB and non-HRB work). The threshold for commencement is much more stringent than the requirements under the pre-October 2023 regime, and the definition differs depending on whether the works consist of construction of a complex building, construction of a non-complex building, the horizontal extension of a building, or other works. For example, where a new building meets the definition of "complex" (as set out in the Building Regulations 2010), work is deemed commenced when the foundations supporting the building and the structure of the lowest floor level of that building (but not the other buildings or structures to be supported by those foundations) are completed.
Once work has commenced and the commencement notice is served, the building control approval is preserved. Where work is not commenced within three years, the original approval will automatically lapse. If the building control authority does not agree that the work has commenced, it can issue a rejection notice.
Completion
Not more than five working days after the work has been completed, the person carrying out the building work must submit a notice to the building control authority which confirms that the works are complete. The client (ie the person for whom the work is carried out) must include a statement, signed by the client, confirming that to the best of the client’s knowledge the work complies with all applicable requirements of the building regulations. The principal contractor and the principal designer under Part 2A of the Building Regulations 2010 (see our blog on the new dutyholders), also have to provide a signed statement confirming that they fulfilled their duties under those regulations. This is in line with the government's aim to increase accountability for building regulations compliance. For HRB work, these statements are included as part of the "gateway 3" completion certificate application made to the BSR once work is complete.
Sufficiently progressed
The above all assumes that the work is subject to the new regime and that the transitional provisions do not apply. However, it is worth noting a further notice that is relevant to HRB works that may be caught by the transitional provisions. HRB works may fall under the transitionary provisions where the plans were deposited with the local authority before 1 October 2023 (and not rejected), or an initial notice was submitted by an Approved Inspector and deemed accepted before 1 October 2023. If the works are "sufficiently progressed" by 6 April 2024, the works will not transfer to the BSR's jurisdiction (for more detail, see our Spotlight on Building Safety Magazine).
A notice that work has sufficiently progressed should be given to the local authority in relation to HRB works even if the works sufficiently progressed well before the new regime came into effect on 1 October 2023. This was not initially clear from the transitional provisions in the regulations. However, in a recent government circular letter the government stated that "local authorities and approved inspectors (or registered building control approvers) should encourage dutyholders of relevant projects to send in this notice, even where the project they are overseeing has sufficiently progressed before 1 October 2023".
Where HRB works reach the threshold to be sufficiently progressed during the six-month transition period between 1 October 2023 and 6 April 2024, a notice must be given to the local authority to confirm that the works have sufficiently progressed not more than five working days after the date the work was deemed sufficiently progressed (and the local authority must receive that notice by 6 April 2024). Where an Approved Inspector/RBCA is engaged, they should also receive a copy of the notice.
If works have not sufficiently progressed by 6 April 2024, the works will transfer to the BSR's jurisdiction. Notices then need to be given to the BSR providing details of the works within the relevant timescales specified in the Building (Higher-Risk Buildings Procedures) Regulations 2023.
To conclude
To avoid non-compliance with the new regime, all of these notices should be diarised and sent accordingly.
The above highlights the key notices in the building control process – other notices may be required during the works and/or at completion, depending on the particular scenario. Notices must be given to the BSR where certain emergency works need to be carried out to a HRB. In addition, for HRB projects, further notices also need to be issued to the BSR where particular changes are proposed to the works and when specified dutyholders are replaced. Notices in relation to fire safety information and the technical performance of the completed building should also be given to the relevant building control authority for some works. Close attention therefore needs to be paid to all of the new regulations to ensure compliance.
Previous posts in our 2023 Yule Blog are here:
- Yule Blog 2023 – 12th Day – Drum roll please…
- Yule Blog 2023 – 11th Day – What’s in the pipeline for tenants in 2024?
- Yule Blog 2023 – 10th Day – The Levelling Up and Regeneration Act 2023
- Yule Blog 2023 – 9th Day – 9 ESG Steps for Real Estate
- Yule Blog 2023 – 8th Day – The property cases standing out from the herd
- Yule Blog 2023 – 7th Day – Nutrient and water neutrality
- Yule Blog 2023 – 6th Day – Laying out the new regime for Approved Inspectors
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.