This year has seen the introduction of many aspects of the new Building Safety Act 2022 (BSA 2022) regime. There are several six-month transition periods that feature in the new regime, but for this blog we are going to look at a key six-month period that applies to Approved Inspectors.
Those in the construction industry will be used to engaging with Approved Inspectors as an alternative to local authority building control, but that is about to change as Approved Inspectors will soon be replaced by Registered Building Control Approvers (RBCAs).
What is changing?
In October 2023, a six-month transition period began. By 6 April 2024, Approved Inspectors need to have registered as a RBCA to continue to operate and issue new building control initial notices. Those who attempt to continue working as an Approved Inspector beyond the deadline, will be committing a criminal offence (subject to certain run-off provisions).
Registration as a RBCA with the Building Safety Regulator (BSR) replaces the registration of an Approved Inspector under the Construction Industry Council Approved Inspectors Register (CICAIR). Registration will last for five years and the register will be publicly available.
There are currently over 80 Approved Inspectors operating in England and Wales. Those companies either need to register with the BSR as RBCAs, or withdraw from the market. There is therefore a lot for the BSR to do (alongside its other new duties). There are also thought to be over 4,500 individual building inspectors that will need to become "registered building inspectors" under the new regime. A six-month transition period also applies to their registration.
Why the change?
Under section 6 of the BSA 2022, the BSR has to provide such assistance and encouragement as it considers appropriate to persons in the built environment industry and registered building inspectors to facilitate and improve competence. One of the ways the BSR intends to do this is by taking over the register of RBCAs. Section 42 of the BSA 2022 updates the Building Act 1984 to introduce RBCAs, registered building inspectors and the register.
What do Approved Inspectors need to do?
Some Approved Inspectors have already indicated that they will be withdrawing from the market (eg, where people are planning to retire), and will not therefore register as a RBCA. For that scenario there are some run-off provisions that apply only to non-higher risk buildings to allow those projects to be completed. The run-off period is six months from 6 April to 30 September 2024 whereby existing initial notices will remain valid, but no new notices can be issued by the Approved Inspector after 6 April 2024.
For those companies that do wish to become RBCAs, they need to apply to the BSR who will assess the application and invite the Approved Inspector to an interview. The BSR will charge an hourly rate for the assessment. Full details can be found in government guidance: Register your business as a building control approver. The BSR will ask applicants to confirm that they will comply with the professional conduct rules and operational standards rules (these are currently labelled "draft", but are not expected to change).
If a RBCA contravenes the operational standards rules, the BSR can serve notices of improvement and serious contravention. If the RBCA continues to contravene the rules, the BSR can cancel its registration. If a RBCA contravenes the professional conduct rules, the BSR can issue sanctions.
It is also possible for entities to register as RBCAs even if they are not currently Approved Inspectors, or where there is a corporate restructure which means that a new entity must be registered. Such entity would still need to apply to the BSR and meet the BSR's requirements to successfully register and start work.
What about existing projects?
For higher-risk buildings (ie those over 18m/seven storeys tall that include at least two residential units) the BSR itself will be the building control body for those buildings that fall under the new regime. RBCAs will only be able to supervise higher-risk buildings that fall under the transitional provisions where the works have sufficiently progressed by 6 April 2024 (see our article on transitioning to the new building control regime in our Spotlight on Building Safety magazine).
If a higher-risk building has not met the threshold to be classed as sufficiently progressed by 6 April 2024, the project will transfer to the BSR's jurisdiction, even where the initial notice was submitted before 1 October 2023. Therefore, on 6 April 2024, the appointment of the Approved Inspector/RBCA as the sole supervisor for building control will need to be concluded.
Deeming provisions mean that initial notices previously issued by an Approved Inspector for non-higher-risk buildings remain valid once an Approved Inspector successfully becomes a RBCA (provided that it is the same legal entity). Where the Approved Inspector has not registered as a RBCA their appointment will need to conclude at the end of the transitionary period. RBCAs will be able to act in relation to new applications for non-higher risk buildings.
Practical points
The BSR has stressed that Approved Inspectors should make an application to become a RBCA as soon as possible. If an application is complex, there may not be enough time by April 2024 for the BSR to complete its assessment. An Approved Inspector will not want to find itself in a position whereby it cannot issue any new initial notices after April 2024 because there is a delay in assessing its application.
The transitional arrangements for existing initial notices only apply where the RBCA is the same legal entity as the Approved Inspector. Therefore, where an Approved Inspector is planning to restructure or merge with another company, that will need to be considered and this should be discussed with the BSR as soon as possible.
If you have engaged an Approved Inspector for an existing project, if you have not already done so, you should confirm with your Approved Inspector what its plans are for registration. The Approved Inspector should confirm that it is intending to make an application to become a RBCA as soon as possible, otherwise alternative arrangements will need to be put in place.
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
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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.