Further light shed on how the new regime under the Building Act 2022 might apply to existing projects

Although the Building Safety Act 2022 became law on 28 April 2022, the majority of the new building safety and building control regimes under it, depend on the Government in England passing further legislation. On 20 July 2022, the Government launched a consultation examining the detail behind these changes and in doing so have provided further insight into what the new regime could look like.

The "Consultation on implementing the new building control regime for higher-risk buildings and wider changes into the building regulation for all buildings" seeks views on (amongst other things) the new dutyholder regime and competence requirements for those involved in both design and construction; the new building control regime that will apply to higher-risk buildings, including the creation of hard stops (known as "gateways") before, during and prior to completion of higher-risk buildings; and the new record keeping obligations aiming to create the "golden thread" of information for higher-risk buildings.

As well as providing useful further detail and guidance about the different aspects of the new regime, the Consultation also provides further information about how the transitional provisions might operate. This includes how the new regime for higher risk buildings, particularly the more prescriptive building control and gateway provisions, might apply to existing projects.

When building regulations change it is common to have a "transitional period" - the standard position being that those who have already notified building control of their plans, are allowed to continue under the old rules so long as they have started building work on site. This grace period usually lasts somewhere between two and twelve months after the change is made to the regulations, with the aim being to provide clarity and allow the industry to plan and know what rules will apply to upcoming project.

The Government had, however, previously suggested that they thought the industry had had sufficient time to prepare for the changes under the Building Safety Act and so were proposing that any building that came under the new regime, would have to go through the next relevant stage of the gateway process once in force. This was a cause of concern for many as, while Gateway 1 has been in place since August 2021, many contracts which sit behind existing projects do not make provision for: the new information requirements for higher-risk buildings, who is responsible for the building complying with the new regime; and in particular who takes the risk of the new gateway hard stops and any delays associated with them.

Following the Building a Safer Future consultationthe Government have, however, recognised these concerns and now say that: "changing requirements during construction of a project is unfair and disproportionate" and have concluded their previously suggested approach, is not viable. There is though still a concern within the Government that transitional provisions leave scope for parties to try and avoid a more stringent regime by "gaming" the system. The Government is therefore trying to reduce this risk by putting in place more prescriptive definitions of "commencement of work". The new proposal being that, for developers to take advantage of the transitional provisions and have the old regime apply, they would need to:

• submit an initial notice or deposit full plans by the day the new regime comes into force; and
• commence work within six months from the day the new regime comes into force, with the Government's proposed definitions for "commencement of works" being found at para 11.16 -11.22 of the Consultation, with separate definitions being suggested for commencing work to create a new building and commencing building work in an existing building.
  

If this is done, the building would not be subject to the new more stringent regime during design and construction, but the new regime in relation to occupation would still apply, including the need for the building to be registered. The current proposal being that a certificate issued under the existing building control regime would be required to allow registration. If, however, an initial notice or deposit of full plans is not submitted, or the works have not commenced in line with the new definitions within 6 months, then the new more stringent regime for higher-risk buildings will apply. With the Government making clear that each building will be looked at on an individual basis, even if part of a larger multi-building project.

The Government does not normally consult on transitional provisions, the fact they are underlines the significance of the changes which are to be brought into place under the framework of the Building Safety Act. The consultation is open until 12 October 2022, with the Government then then intending to publish its response within 12 weeks from that date. More information on the changes to building and fire safety regulations see our Building & Fire Safety Hub.