The Building Safety Act 2022: Developments over the summer and what not to miss in 2023

Following our previous update on the Building Safety Act 2022 (BSA) in May 2022, we take a look at some of the key developments in this area since then and look at the future changes we can expect to see implemented in 2023. 

Consultation on the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations

In June 2022, the first BSA consultation of the summer on “higher-risk buildings” began. The BSA imposes legal responsibilities on those who commission building work, participate in the design and construction process and those who are responsible for managing structural and fire safety in
“higher-risk” buildings when they are occupied. A “higher-risk” building is defined as any building which contains two or more residential units which are at least 18m or seven storeys high. 

The government is proposing to make regulations setting out technical definitions, excluding certain buildings from the new regime and defining the use criteria for a building to be included. It is also proposed that the regulations should define how a building’s height and storeys are measured.

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

In the second half of July 2022, a more substantial consultation began to seek views on Part 3 of the BSA. The consultation focuses mainly on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings. 

These include:

(i) imposing additional duties on those working on higher-risk buildings, including a greater obligation for information sharing between key duty-holders – furthering the BSA’s aim of improving stakeholder communication – and a requirement for duty-holders to check for ‘serious infractions’ when appointing others to work on higher-risk buildings;

(ii) imposing a new ‘hard stop’ to strengthen building control for higher-risk buildings before a building is occupied;

(iii) new Building Safety Regulator notices, to support the development of building projects that contain both higher-risk and non-higher risk buildings;

(iv) additional requirements for refurbishments in higher-risk buildings;

(v) mandatory reporting systems regarding higher-risk buildings;

(vi) greater record keeping of key project information in higher-risk buildings (i.e. the golden thread); and

(vii) stronger enforcement and sanctions for all building work.

Explanatory Notes published

In August 2022, the Explanatory Notes for the BSA were finally published.  This long-awaited supplement to the legislation sets out useful, non-binding guidance on the policy background and interpretation of the BSA, which will assist with its application in practice. 

Sections 126-129 of the BSA take effect

Sections 126-129 of the BSA (building industry schemes and prohibitions on development and building control) came into force on September 1, 2022. These provisions allow the government to introduce building industry scheme(s) that require members to remedy defective buildings and/or contribute to the cost of doing so. They also enable the government to impose prohibitions on those in the industry as it considers necessary to do so, including on those who are eligible to be members of a building industry scheme but choose not to sign up. 

As of the date of publication, no building industry schemes have been published and government negotiations with industry groups remain ongoing. 

What to expect in 2023?

Further elements of the BSA framework are due to be implemented prior to the end of April 2023. These include:

• establishment of a Resident Panel, so that the Building Safety Regulator hears residents’ safety concerns and consults them on proposals;
• Regulatory Reform (Fire Safety) Order 2005 reforms;
• Architects Registration Board reforms, intended to improve the transparency and monitoring of the profession; and
• additional powers for the regulation of construction products.

We should also see the following come into force before the end of October 2023:

• establishment of a Building Advisory Committee, which will provide advice to the Building Safety Regulator on developing future building regulations;
• establishment of the Industry Competence Committee to publish public guidance on industry competence and advise the Building Safety Regulator in relation to this issue;
• mandatory registration of building inspectors and building control approvers;
• mandatory registration of occupied high-risk residential buildings;
• new duties on the Accountable Person with regard to managing safety risks in higher-risk buildings;
• Gateways 2 and 3 to come into operation;
• commencement of mandatory occurrence reporting pertaining to fire and structural safety issues; and
• new requirements for construction products.

We will provide further details on upcoming developments relating to the BSA’s transition into practice as they emerge.