A round-up of some of the recent publications relating to building control/safety regulation in the UK

• Grenfell Inquiry Final Report expected on 4 September 2024
  
  
• Appointment of building safety minister
  
  
• Building control regime updates
  • Revised Common Assessment Standard: demonstrating that competence has been checked
  • Do the homework before applying for building control approval
  • New resources to help you prepare applications for building control approval
  • What to do if you do not receive a decision from the regulator
  • Clarity for those varying work on an HRB covered by the transitional regime
  • Building control practice guidance: Cancellation notices, transfers and reversions
    
    
• Building Liability Orders
  • Guidance on applications for Building Liability Orders under the BSA
    
    
• Remediation Orders
  • FTT gives Remediation Order
    
    
• Changes to standard form contracts to reflect the new building control regime
  • JCT 2024
  • RIBA Building Regulations Principal Designer Professional Services Contract (2024)
    
    
• Building safety update: Scottish focus
  
  
• Building safety in Wales
  • New Welsh Government handbook on building safety in Wales
  • Revised versions of the standards, rules and codes for the building control profession published (WGC 009/2024)

Grenfell Inquiry Final Report Expected on 4 September 2024

With less than a week to go before the Grenfell Inquiry publishes its final report, the fire at a residential block in Dagenham over the August bank holiday weekend provided an unwelcome flashback to the Grenfell fire.

It is a timely reminder both of the importance of the Building Safety Act 2022 (BSA 2022) in improving safety across the construction industry – and that risks remain on a number of high-rise buildings.

As Deputy Prime Minister, Angela Rayner said: "Speeding up the remediation of buildings is absolutely critical … This government will expect more from regulators and partners to make sure action is being taken now to make homes safe, speed up remediation and ensure that buildings in the process of being remediated are managed safely for residents."

(See the government press release of 29 August 2024: Fixing unsafe buildings must be faster …)

The Grenfell Inquiry issued a couple of statements over summer.

On 14 June 2024, the seventh anniversary of the fire at the Grenfell Tower, the inquiry offered its "heartfelt sympathy to the bereaved, survivors and all those whose lives were irrevocably changed by the disaster" (see the statement here).

More recently, the Inquiry's August 2024 newsletter confirmed that its final report will be published at 11am on Wednesday 4 September 2024 from which time the report will be available to read on the Inquiry's website.

Included in the August newsletter were details of available counselling support services (www.grenfellwellbeing.com) – another sobering reminder that many continue to suffer as a result of the fire – and, it is to be hoped, an incentive for all to ensure full implementation of the BSA 2022 to prevent further tragedies of this nature.

Return to the top

Appointment of Building Safety Minister

Rushanara Ali MP has been appointed as minister for building safety and homelessness.

The role includes responsibility for the Grenfell Community, Tower and Memorial, the Grenfell Inquiry, building safety, building regulations, the Building Safety Regulator and remediation.

Return to the top

Building control regime updates

Revised Common Assessment Standard: demonstrating that competence has been checked

The Common Assessment Standard (CAS) was developed by Build UK to improve the efficiency of the construction pre-qualification process as well as to reduce costs and raise quality standards. The CAS is used by contractors and clients as reassurance that companies with the CAS which they appoint have been checked and certified annually (with either "desktop" or "site-based" certification awarded) by a recognised assessment body. The CAS is also used by government and public sector bodies to pre-qualify suppliers as required by PPN 03/24: Standard Selection Questionnaire.

An updated version 4 was published on 1 July 2024 to include a new section on building safety, ensuring it can be used to demonstrate companies have the organisational capability to fulfil their roles under the BSA 2022. The CAS can now be used by client and contractor dutyholders to demonstrate that those individuals/organisations they appoint for design and construction works are competent to act as required by the BSA 2024. You can read the Construction Leadership Council (CLC) press release on the new version here: Demonstrating Organisational Capability with the Common Assessment Standard.

Return to the top

Do the homework before applying for building control approval

The CLC has met with the Building Safety Regulator (BSR) to discuss recent delays to building control applications. As reported in the CLC press release, the BSR attributes the delays in part "to the unexpected increase in applications coming into the BSR" but also points out that the BSR is "experiencing a high number of applications which are incomplete or are unclear, making them unsuitable for approval. This is particularly the case for smaller refurbishment projects and work on existing buildings."

As the regulator, the BSR added a stark warning that it will not "tell you how to comply with the requirements of the building regulations" or "provide pre-application advice on building control applications". It recommends that advice on the building regulations "should be sought from competent professionals" if needed and makes clear that it needs "applicants to play their part to help facilitate the process by ensuring their applications provide quality, detailed information that clearly and comprehensively demonstrates compliance with building regulations".

Return to the top

New resources to help you prepare applications for building control approval

Those under any illusion as to the amount of rigorous preparation that is needed for preparing an application of the quality and detail expected by the BSR on higher-risk buildings (HRBs) should read the above-mentioned press release and the further resources it signposts.

These resources include two recorded webinars from the May 2024 BSR conference dealing with Building control approval applications and Helping resident groups with small building projects as well as the BSR's short Q&A here.

The full set of recordings from the May 2024 conference can be found on YouTube here.

Finally, a new resource well worth exploring is the Building Control Authority website.

This platform includes information about the BSR's expectations and how to make building control applications as well as an "FAQ Explainer" dealing with the HRB regime, making building control applications, smaller refurbishment projects and work on existing buildings, hospitals and clients.

Return to the top

What to do if you do not receive a decision from the regulator

The government has updated its guidance on section 30A non-determination applications for HRBs.

Where the BSR has not issued its decision on specified applications (such as the Gateway 3 application for a completion certificate) within the required BSA 2022 timeframe, and an extension has not been agreed, section 30A of the Building Act 1984 enables applicants to apply for determination of their application by the Secretary of State.

The government guidance on section 30A of the Building Act 1984, which was first published in January 2024, has now been updated to include a new section on how to apply.

In summary, this new section of the guidance, Non-determination applications for higher-risk buildings procedures: applying to the Secretary of State (5 August 2024), explains that:

• once a section 30A application has been made, applicants can no longer request a new extension from the BSR or return the application to the BSR for a decision;
• there is no statutory timeframe within which the Secretary of State must decide;
• the application must comply with strict criteria to be considered valid for the Secretary of State's determination − including that the application is made "within six weeks from the day after the expiry date of the original application with the [BSR]" and that the applicant has informed the BSR of the intention to make a section 30A application at least two working days before its submission;
• the application must also include certain information such as the BSR-provided application reference number and proof of the aforementioned strict criteria.

The lack of a timescale for Secretary of State decisions following a section 30A application, and the ongoing and rising costs caused by delay to the HRB's registration and handover to tenants, underline the need to pay heed to the BSR's advice (mentioned above) to ensure applications are BSA 2022 compliant at the first attempt.

Return to the top

Clarity for those varying work on an HRB covered by the transitional regime

The BSA 2022's transitional provisions enable registered building control approvers (RBCAs) to supervise HRB work in transitional cases where the initial notice was submitted before 1 October 2023 and the work was sufficiently progressed by 6 April 2024.

A lack of clarity as to what happens when the works need to be varied during the transitional period has been addressed in new regulations, the Building Safety Act 2022 (Amendment Notices Transitional Provision) Regulations 2024 SI 2024/850.

These regulations, which came into force on 6 August 2024 and apply in England and Wales, ensure that amendment notices can be made in those transitional cases without the risk of the HRB falling outside the transitional regime as a result of the work being varied.

Return to the top

Building control practice guidance: cancellation notices, transfers and reversions

On 22 August 2024, the Ministry of Housing, Communities and Local Government published new Building control practice guidance: cancellation notices, transfers and reversions.

The guidance, which is applicable in England only, is fairly detailed and provides welcome clarification on a number of scenarios, including on:

• The transitional arrangements for approved inspectors where cancellation notices were issued by an approved inspector that has not become an RBCA (given that such approved inspectors will exit the building control profession from 1 October 2024). The guidance also explains:
  • what is a cancellation notice;
  • when it must be issued in relation to non-HRB work; and
  • when work in an initial notice becomes HRB work.
• The transfer of projects to a new RBCA, including:
  • what happens when a cancellation notice is issued by an RBCA and when can another RBCA be appointed for non-HRB work;
  • when a cancellation notice should be issued by a local authority due to a disciplinary order or sanction against an RBCA and when can another RBCA be appointed;
  • what are transfer certificates and transfer reports;
  • the grounds on which a local authority can reject a transfer certificate or transfer report;
  • what happens when a local authority does not receive a transfer certificate or report within the deadline or the local authority rejects the transfer certificate;
  • what happens if a new initial notice is cancelled by the person carrying out (or intending to carry out) the work when the local authority is considering a transfer certificate or report;
  • how information from the original RBCA can be transferred to the new RBCA.
• The transfer of projects to a new RBCA (without a transfer certificate or report), including:
  • what happens when a cancellation notice has not been issued by an RBCA but it appears to the person carrying out or intending to carry out the work (e.g. the client, developer or contractor) that the RBCA is no longer willing or able to carry out its functions with respect to any of that work;
  • how to transfer information from the original RBCA to the new RBCA.
• What happens when a project reverts to either the local authority and BSR;
• Local authority capacity and whether the authority can reject a reverted project. The guidance also deals with how local authorities can be satisfied that a reverted project complies with the Building Regulations and whether local authorities can share capacity where they receive a high number of reversions.

Return to the top

New HRB-related duties to give notice for insolvency practitioners

Section 125A of the BSA 2022 came into force on 24 July 2024, courtesy of section 119 of the Freehold and Leasehold Reform Act 2024. The section affects insolvency practitioners (IPs) appointed in relation to a responsible person for an HRB or a relevant building – they must now give notice of their appointment alongside the submission of specified information to the local authority and the fire and rescue authority for the area in which the building is located within 14 days of appointment. For HRBs, the IP must also notify the BSR.

Briefly, a responsible person is one with an interest in possession of the common parts or is under a repairing obligation in relation to the common parts (see sections 125A(2) and 72, BSA 2022). An IP is defined under section 125A(8) of BSA 2022 as an administrator, administrative receiver or receiver appointed by the court/mortgagee/liquidator/trustee in bankruptcy.

You can read the Insolvency Service published guidance here: Dear IP, Chapter 17 (legislation) Article 70, Leasehold and Freehold Reform Act 2024: New requirements in relation to insolvency.

Return to the top

Building Liability Orders

Guidance on applications for Building Liability Orders under the BSA

In March 2024, the Technology and Construction Court (TCC) provided guidance on Building Liability Orders (BLOs) in its decision in Wilmott Dixon v. Prater and others [2024] EWHC 1190 (TCC). BLOs were introduced under the BSA to prevent the use of shell companies or special purpose vehicles as a means to avoid liability for cladding defects. In essence, a BLO extends liability to companies associated with those liable for the defects and makes them jointly and severally liable.

The claim in Wilmott Dixon arose from a project for the design and construction of a mixed-use development. Skipping over the background and complex relationships between the parties in this matter for the sake of brevity, the fourth defendant to the proceedings found out that two of the other defendants had disposed of assets to members of their corporate group after the claim on the project had emerged. The fourth defendant applied for a BLO under section 130 of the BSA against the recipients of the assets (who had been joined as additional parties to the proceedings) to secure their contribution to any future liability for defects. Those additional parties then applied to the court for a stay of the fourth defendant's BLO application.

Jennie Gillie, colleague of counsel for the applicant (Sean Brannigan KC), highlighted in their report of the case that a defendant, rather than a claimant seeking a BLO "against companies related to another defendant in order to secure an effective contribution to any liability which it might have" is "groundbreaking". 

In rejecting the defendants' application for a stay of the BLO application, Mrs Justice Jefford set out a clear and useful set of guidance on applications for BLOs, not least that those applying for a BLO did not have to make the application at the same time as the making of the main claim. However, the judge also listed "a number of reasons why it would generally be sensible and efficient for [BLO-related] matters to progress with the main claim and additional claim being heard together".

In brief

• BLOs under the BSA can be used by defendants against other defendants/[third] parties to secure contributions to liability.
• The judicial guidance set out in the Wilmott Dixon judgment will be of considerable assistance for those dealing with future BLO applications.

Return to the top

Remediation Orders

FTT gives Remediation Order

In May 2024, the Department for Levelling Up, Housing and Communities (DLUHC) "won a landmark legal challenge against freeholder Grey GR forcing it to fix serious building safety issues in Vista Tower in Stevenage" (see the press release and Secretary of State for Levelling Up, Housing and Communities v. Grey GR Ltd Partnership [2024] 4 WLUK 558).

DLUHC had asked the First-tier Tribunal (Property Chamber) (FTT) to exercise powers under the BSA 2022 to make a remediation order. Section 123 of BSA 2022 empowers the FTT to make remediation orders that require a relevant landlord (as defined in section 123) to remedy specified "relevant defects" (as defined in section 120 BSA 2022) in a specified "relevant building" (as defined in section 117 BSA 2022) by a specified time. (Further provisions are set out in the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 (SI 2022/859).)

The respondent landlord, Grey, had already entered into contracts for the carrying out of remediation works and practical completion dates had been set. Nevertheless, the FTT noted that 57 of the leaseholders in the building in question had asked for a remediation order. Agreeing with the applicant that "the whole focus of the BSA is on leaseholder protection", the FTT gave the remediation order, based on the particular circumstances, "as a backstop to give reassurance" to the tenants, having concluded that: 

• "The 2022 regulations give the [FTT] both the power to and a discretion as to whether to make a remediation order" (paragraph 117);
• The remediation order was not given as a "fault-based order";
• This was not "a case where [a remediation] order should set short deadlines and expect active interventions to put pressure on a defaulting landlord";
• "The focus [of a remediation order] is not on providing redress for non-compliance with a legal obligation (as with damages or specific performance), but on remediation of life-threatening building safety defects in tall residential buildings. In particular, if the pre-qualification criteria set out in section 123 apply and there are relevant defects, we [the FTT] consider that it is likely that the tribunal will make an order, subject to the facts of each case".

In brief

Grey provides useful guidance both for those applying and on the receiving end of an application for remediation orders.

Return to the top

Changes to Standard Form Contracts to Reflect the New Building Control Regime

JCT 2024

As mentioned in our contracts update, Construction contracts: what's new? (UK focus), the Joint Contracts Tribunal (JCT) continues to publish updated versions of its standard form contract suites. Amendments have been made to reflect the introduction of the new dutyholder regime under BSA 2022 which applies in England only to all building works subject to the Building Regulations 2010. These amendments are rudimentary and further changes might be needed depending on the project and its location. For information and advice on adapting your construction contracts to ensure compliance with the new building control regime, speak to Mark Macaulay or one of the Key Contacts.

Return to the top

RIBA Building Regulations Principal Designer Professional Services Contract (2024)

The Royal Institute of British Architects (RIBA) has published its 2024 Building Regulations Principal Designer Professional Services Contract (PSC). RIBA heralds the new PSC as "a new contract that is suitable for the appointment of a Building Regulations Principal Designer with a commercial client or public authority" and which includes "a comprehensive set of contract terms, including a clear set of roles and associated services". It recommends that "it is suitable for larger, more complex commercial projects".

Return to the top

Building safety update: Scottish focus

Click here to read our update on building control/safety regulation affecting construction activities in Scotland. The update addresses:

• Scotland's approach to cladding remediation works;
• Building Safety Levy in Scotland;
• Building standards enforcement and sanctions: consultation outcome report.

Return to the top

Building safety in Wales

New Welsh government handbook on building safety in Wales

The Welsh government has published its Building Safety Act 2022 Handbook for Wales Design and Construction Phase (Handbook). The Handbook explains the current position in Wales relating to building safety and collates current legislation and other useful information. Helpfully, the Welsh government has confirmed that it will be updating the Handbook as future regulatory changes are made available.

By way of recap, not all of the provisions of the BSA 2022 apply in Wales and publication of the draft Welsh regulations are awaited. While there is now a Welsh definition of HRBs, the English requirements relating to the creation and maintenance of the golden thread of information (for HRBs) and dutyholder duties do not apply.

The Handbook covers ground familiar to those subject to the new English building control regulations in that "[the BSA is] perhaps the biggest overhaul of building control and safety measures from the past forty years" and "Part 3 of the [BSA] amends and updates parts of the Building Act 1984. It requires the regulation and registration of the building control profession, this includes individuals, local authorities and private companies, and has power to introduce dutyholders, and associated liabilities as a result of any failings or safety breaches that may result from their (in)actions" and "a significant portion of the [BSA 2022] is devoted to a new class of buildings: higher-risk buildings [(HRBs)]" i.e. those structures where the risk to occupants is deemed to be greater than usual due to the height or occupancy type. 

The Handbook goes on to explain that "Part 4 of the BSA, which relates to HRBs and management of building safety risks in occupied HRBs, does not apply to Wales". Instead, the Welsh government has its own definition of HRB and is preparing its own regulations regarding the safety of occupied buildings, the first draft of which is awaited.

Implementation of the BSA in Wales has been split into stages and the Handbook also explains:

• that registration opened for Registered Building Inspectors (RBIs) and RBCAs on 31 January 2024 and is being carried out by the UK Building Safety Regulator on behalf of Welsh government ministers;
• that the new mandatory registration scheme for RBCAs and RBIs came into effect in Wales on 6 April 2024. A transitional period covering the period from 6 April 2024 to 1 October 2024 is giving time for those Welsh professionals transitioning to the new roles to complete the assessment process required for registration. The Handbook also provides guidance both for those professionals undertaking the registration process and those that choose not to register;
• that new forms have been introduced to correspond with the new processes for building control, each with a "W" appended to denote the version being Welsh. For example, Form1(W) deals with the Initial Notice used for notifying the local authority of the intention to start work;
• the new process (effective from 6 April 2024) by which "an RBCA can apply to the local authority to transfer an initial notice and building control functions to a new RBCA while keeping the original initial notice active".

The Handbook concludes with guidance on the transitional provisions in Wales and a note that future changes "under consideration or consultation include the introduction of dutyholders and responsibilities upon them, reforming the monitoring and enforcement of local authority building control from 2025, as well as the introduction of the Golden Thread and building control processes for HRBs".

Return to the top

Revised versions of the standards, rules and codes for the building control profession published (WGC 009/2024)

The Welsh government published Revised versions of the standards, rules and codes for the building control profession (WGC 009/2024) as part of its circular letter to local authorities. The versions updated are:

• Building Inspector Competence Framework (Wales) 2024;
• Code of Conduct for registered building inspectors (Wales) 2024;
• Professional Conduct Rules for registered building control approvers (Wales) 2024;
• Operational Standards Rules (Wales) 2024;
• Operational Standards Rules (OSR): Monitoring Arrangements (Wales).

The majority of the amendments are said to be minor apart from those more substantive changes that are highlighted in the circular letter.

A full list of the standards, codes and rules with which building inspectors and building control bodies are now required (since April 2024) to comply under changes to the Building Act 1984, as inserted by the BSA 2022, can be found here: https://www.gov.wales/building-control-profession-standards-codes-and-rules.

Return to the top