Annex B to the Consultation Outcome: Transitional arrangements factsheet
Note: This Annex B is taken from the Consultation outcome: Government response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings and has been reproduced in accordance with Open Government Licence v3.0, @Crown copyright
What are we going to do?
1
Following the Grenfell Tower fire, Dame Judith Hackitt proposed significant reform to the way building work is carried out and how it is regulated, including for higher-risk buildings. Part 3 of the Building Safety Act 2022 made changes to the Building Act 1984 to deliver these reforms.
2
Part 3 introduces a more stringent regulatory framework in design and construction led by the Building Safety Regulator (the Regulator) for higher-risk buildings. The higher-risk regime will strengthen regulatory oversight before building work commences, throughout construction including before major changes are made, and before a building is occupied.
3
The Building (Higher-Risk Building Procedures) Regulations 2023 provides the technical and administrative detail underpinning the higher-risk regime and will support its implementation. The regulations will come into force on 1 October 2023.
4
After a change to the building regulations, it is common practice to provide a transitional period – normally somewhere between two and 12 months. Under transitional arrangements, those that have already notified a building control body of their plans are allowed to continue under the old rules provided they have met certain conditions such as commencing building work on site. This provides clarity and reduces the risk of developers being adversely impacted by changes to requirements part way through the construction process.
5
When the Building (Higher-Risk Building Procedures) Regulations 2023 come into force on 1 October 2023, the transitional arrangements will determine the rules and procedures that building work in-scope of the higher-risk regime will need to follow if they have already notified a building control body of their plans (‘in-flight’ building work).
6
The transitional provisions included in the regulations will determine the rules and procedures ‘in-flight’ higher risk building work will need to follow. If developers meet the conditions under the transitional arrangements, they will be able to build out their higher risk building work to current rules using their current building control body.
7
These transitional arrangements are different to previous provisions that have accompanied changes to building regulations because they are accommodating a change to the procedural requirements of building regulations and a change to the body responsible for overseeing the building work.
8
There will be transitional arrangements for non-higher-risk buildings, after plans have been accepted that building work must start on site. If an application has not been submitted or work has not started on site within 6 months, a new building control approval application must be made, and the new procedures and requirements will apply.
9
There will be separate transitional arrangements for the legacy system of approved inspectors into the new system of registered building control approvers. By 6 April 2024, the building control profession will become a registered profession. The transitional provisions for the higher-risk regime will align to these to ensure the timeframes are consistent.
What are the transitional provisions for the higher-risk regime?
How do I benefit from the transitional arrangements?
10
For transitional arrangements to apply to higher risk building work, 2 conditions must be met:
A. An initial notice must have been given to a local authority (and not be rejected), or full plans must have been deposited with a local authority (and not be rejected) before the day the new regime comes into force (1 October 2023).
B. The higher risk building work must be ‘sufficiently progressed’ within 6 months of the new regime coming into force (by 6 April 2024).
11
If the 2 above conditions are met, those carrying out the work would not be subject to the higher-risk regime for that individual higher-risk building. They would instead continue under a local authority or private sector building control.
12
Where building work fails to meet the first condition, the work is subject to the higher-risk regime immediately on 1 October 2023 and will be overseen by the Regulator.
13
Where the first condition has been met, but the second condition has not, the building work will transfer to the jurisdiction of the Regulator. The route of transfer and the higher-risk regime requirements applied will differ dependent on whether the building work was previously overseen by the local authority or private sector building control.
14
Separately the building control profession will become a registered profession on 6 April 2024. Higher risk building work must be overseen by a registered building control approver at this point. Approved inspectors must be registered by 6 April 2024 to continue to oversee existing higher risk building work.
15
If the in-flight building work is subject to an initial notice, the approved inspector overseeing the project must have registered by 6 April 2024 for the project to continue to benefit from the transitional arrangements and remain under private sector building control.
16
An initial notice may be cancelled at any point after 1 October 2023. Where an initial notice is cancelled after 1 October, the in-scope building work is subject to the higher-risk regime and must be overseen by the Regulator. The requirements of the higher-risk regime will be proportionately applied depending on whether the work covered by a cancelled or lapsed initial notice has sufficiently progressed or not.
What does ‘sufficiently progressed’ mean?
17
For the construction of a higher-risk building, the building work is sufficiently progressed when the placement of permanent foundations has started. This means the pouring of concrete for the permanent placement of the trench, pad or raft foundations or the permanent placement of piling has begun.
18
For building work to an existing higher risk building or a material change of use, the building work is sufficiently progressed when the work has started.
19
To benefit from the transitional provisions, building work must satisfy the definition of sufficiently progressed before 6 April 2024. The person carrying out the work must notify the local authority no less than 5 days after the point the work is considered sufficiently progressed and before 6 April 2024. If the building control body is private sector building control the notice must also be copied to the approved inspector. This ensures that the relevant building control body is aware whether the conditions of the transitional provisions have been met.
Why do projects only have 6 months to ensure work is sufficiently progressed?
20
Six months is an appropriate period in relation to the required amount of work that must have been completed to be deemed sufficiently progressed. The government has worked with industry to ensure the definition of sufficiently progressed is proportionate while representing a physical commitment to carrying out building work.
Are the transitional provisions applied to individual buildings?
21
Yes. In line with the Building Safety Act 2022 and recent uplifts to building regulations, work must have ‘sufficiently progressed’ on each individual higher risk building to benefit from the transitional arrangements, rather than an entire construction site.
What happens if I meet the conditions of the transitional arrangements?
22
If the conditions of the transitional arrangements are met, the building work will not be subject to the higher-risk regime and will continue to be supervised by local authority building control or private sector building control.
23
On completion, the building work will be granted a completion certificate from a local authority or a final certificate from an approved inspector or registered building control approver. The certificate will satisfy the requirement for an accountable person to be in possession of a completion certificate before a higher-risk building can be lawfully occupied.
24
The building will be subject to all in-occupation requirements brought forward under part 4 of the Building Safety Act 2022. See further information about the in-occupation requirements.
What requirements will be applied to building work transferred to the Building Safety Regulator?
What happens if I do not deposit my plans or give my initial notice to the local authority by 1 October 2023?
25
The building work will be subject to the higher-risk regime on 1 October 2023. Before building work begins an application for building control approval must be approved by the Building Safety Regulator.
My in-flight building work is being overseen by the local authority, what happens if work hasn’t sufficiently progressed by 6 April 2024?
26
Where someone intending to carry out work has deposited full plans with a local authority before 1 October 2023 and the building work is not sufficiently progressed by 6 April 2024, the building work will transfer to the jurisdiction of the Building Safety Regulator. To ensure the transfer can take place as seamlessly as possible, the following process will take place:
- The local authority will be required to notify the Regulator by 6 March 2024 that they are overseeing higher risk building work yet to have sufficiently progressed. This notice will include details of the building, a description of the building work and an outline of the work undertaken including any inspections. The local authority, the developer and the Regulator will begin to engage during the 28-day period to facilitate the transition.
- When the 6-month period ends on 6 April 2024, if the project has still not sufficiently progressed it will transfer to the jurisdiction of the Regulator on this date and the new regulations for higher-risk buildings will be applied.
- Within 4 weeks of transferring to the jurisdiction of the Regulator, the client of the project will send across a notice to the Regulator which includes all relevant information on the higher risk building work. The notice must include the contact details of the client and principal dutyholders, the full plans approved by the local authority with any conditions, any changes to the full plans since they were approved and a description of the building work carried out to date, including any inspections.
27
When transferring to the Regulator, the person carrying out the work will not be required to submit an application for building control approval at gateway 2. Dutyholders may continue to build-out to the plans approved by the local authority. However, the Regulator on receipt of the notice may require further information on the project and may enforce against any non-compliance identified.
28
The dutyholders of transferred building work will be subject to all requirements of the higher-risk regime, excluding the requirements related to building control approval applications. A building control approval application will not be submitted and approved before building work begins and therefore, some requirements of the higher-risk regime are modified.
29
The statutory change control process will apply, and all controlled changes will need to be recorded in the change control log. However, a controlled change must be in the context of the original full plan’s application deposited with the local authority before the higher-risk regime came into force. Some changes outlined in the categories of major and notifiable changes include changes to the prescribed documents. The change control requirements related to changes that are linked intrinsically to the prescribed documents will not be applied. Regarding major changes, a change to any assumption made in the design of a proposed higher-risk building before all the work is completed, and a change proposing occupation of any part of the proposed higher-risk building before all the work is completed, are both excluded for work in these cases. Regarding notifiable changes, a change to the construction control plan other than a change to the schedule of appointments contained within it, and a change to the change control plan are both excluded for work in these cases.
30
Mandatory occurrence reporting requirements will apply and safety occurrences which meet the risk condition must be reported to the Regulator within ten calendar days of becoming aware of the occurrence. However, a short time period will be established to support dutyholders in complying with the requirements. The client will need to establish the mandatory occurrence reporting system and provide adequate instruction to each reporting person, within ten calendar days of the transfer to the Regulator.
31
Golden thread requirements will apply, but a short time period will be established to support dutyholders in complying with the requirements. From the point of transfer, the client will be responsible for making sure there are suitable arrangements in place for the creation, maintenance and management of the golden thread. The client will have 45 days from the point of transfer to establish the electronic facility or before a completion certificate application is submitted (whichever comes first). The golden thread at the end of the 45-day period must include the original full plans application and any additional information submitted to the Regulator as part of the transfer notice. All the information required as part of change control regulations and the completion certificate application will need to be stored in the golden thread and handed over to the relevant person before a completion certificate application can be submitted.
32
An application for building control approval, including the prescribed documents, will not have been provided before building work begins. As a result, a fire and emergency file will not have been created and cannot be provided when complying with change control regulations or completion certificate regulations. To ensure that sufficient fire safety information is provided, instead of a fire and emergency file, the client must provide a document setting out the fire safety design principles, concepts and standards applied to the development including sufficient plans to show how the work would comply with Part B (fire safety) of Schedule 1 to the 2010 Regulations in relation to the higher-risk building or proposed higher-risk building.
33
On completion of building work, a completion certificate application must be submitted and approved before lawful occupation can take place. The completion certificate application will be modified by excluding some prescribed documents to reflect that the building work did not apply for building control approval at gateway 2. A construction control plan, change control plan and description of the mandatory occurrence reporting system will not be required as part of the completion certificate application. All other documents and information will be required and should reflect the as-built building.
My building work is overseen by private sector building control, what happens if my initial notice ceases to have effect before work has sufficiently progressed?
34
When higher risk building work is subject to an initial notice and building work has not sufficiently progressed by 6 April 2024, the initial notice will cease to be in force on that date. Similarly, an initial notice may be cancelled for a different reason between 1 October and 6 April 2024 before work has sufficiently progressed.
35
As soon as an initial notice ceases to be in force, the building work in-scope of the higher-risk regime will transfer to the Building Safety Regulator. The following process will take place:
- Once an initial notice ceases to be in force, the approved inspector or building control approver (if registered) must notify the person carrying out the work as soon as practicable of this fact and confirm the work is now under the jurisdiction of the Regulator.
- Within ten working days of an initial notice ceasing to be in force, the person carrying out the work must notify the Regulator that they are carrying out higher risk building work. The notification must include contact information of the person carrying out the work, the location of the building, the details of the work to be carried out and a description of any work already carried out under an initial notice. Dialogue between the Regulator and the person carrying out the proposed work is encouraged.
- Before any work can continue, on site, the client of the project must submit an application for building control approval. This application must meet all the relevant requirements of building control approval applications under the higher-risk regime as well as provide sufficient plans of the work carried out on site to show whether any part of the work contravenes any applicable building regulations.
- On receipt of the application, the Regulator will validate the application as soon as reasonably practicable to ensure it satisfies the information requirements. If the application is valid, the building work may continue ‘at risk’ following all applicable regulations.
36
The Regulator will assess the valid application alongside work continuing on the project and during this period, the client must comply with any notice requiring them to lay open, test, sample or pull-down building work completed on site that prevents the regulator from ascertaining whether the work contravenes any requirement in building regulations. Any work completed on site will be reviewed and assessed by the Regulator. We expect the Regulator to take a risk-based and proportionate approach to these transfers. While the Regulator is assessing an application, any controlled changes to the application for building control approval submitted to the Regulator before its approval must be recorded in the change control log.
37
Any plans certificates or final certificates issued to parts of the building work will have no effect. The building work has not sufficiently progressed so should not benefit from protection against enforcement from the Regulator.
38
If an application is rejected, no further building work in relation to the project may be carried out until a new building control approval application is submitted and approved by the Regulator. This requirement means a client that has received a rejection for their building control approval application cannot subsequently submit a new valid application and continue the building work, they must wait for the Regulator to determine the application. This approach prevents dutyholders from avoiding the higher-risk regimes hard stop decision points by continuing to submit successive valid applications that meet the grounds for rejection.
39
If an application has been approved, the building work will be subject to all of the requirements of the higher-risk regime.
40
On completion of building work, the client will need to provide a completion certificate application that meets the information requirements of these regulations. If the Regulator is satisfied that the as-built building work is compliant with all applicable building regulations, the client will be issued a ‘transfer and completion certificate’ that will satisfy the requirements to occupy and register the building.
My building work is overseen by private sector building control, what happens if my initial notice ceases to have effect after work has sufficiently progressed?
41
Higher risk building work subject to an initial notice may have sufficiently progressed by 6 April 2024 but then subsequently the initial notice ceases to have effect. This could be because the approved inspector has not registered as a building control approver by 6 April 2024 and the initial notice ceases to have effect on that date, or the initial notice is cancelled for a different reason.
42
As soon as an initial notice ceases to be in force, the building work in-scope of the higher-risk regime will transfer to the Building Safety Regulator. The following process will take place:
- Once an initial notice ceases to be in force, the approved inspector or building control approver (if registered) must notify the person carrying out the work as soon as practicable of this fact and confirm the work is under the jurisdiction of the Regulator.
- Within ten working days of an initial notice ceasing to be in force or being cancelled, the person carrying out the work must notify the Regulator that they are carrying out higher risk building work, and it is under the Regulator’s jurisdiction. The notification must include contact information of the person carrying out the work, the location of the building, the details of the work to be carried out and a description of any work already carried out under an initial notice specifying all work covered by a final certificate. Dialogue between the Regulator and the person carrying out the proposed work is encouraged.
- Before any work can continue, on site, the client of the project must submit an application for building control approval. This application must meet all the relevant requirements of applications for building control approval under the higher-risk regime as well as provide sufficient plans of the work carried out on site to show whether any part of the work contravenes any applicable building regulations. On receipt of the application, the Regulator will validate the application to ensure it satisfies the information requirements. If the application is valid, the building work may continue ‘at risk’ following all applicable regulations.
43
The Regulator will assess the valid application alongside work continuing on the project and during this period, the client must comply with any notice requiring them to lay open, test, sample or pull down building work completed on site that prevents the regulator from ascertaining whether the work contravenes any requirement in building regulations. Any work completed on site will be reviewed and assessed by the Regulator. We expect the Regulator to take a risk-based and proportionate approach to these transfers. While the Regulator is assessing an application, any controlled changes to the application for building control approval submitted to the Regulator before its approval must be recorded in the change control log.
44
Any plans certificates issued to parts of the building work will have no effect. However, enforcement protection in relation to the Regulator’s enforcement powers will be provided by final certificates accepted before the initial notice is cancelled. The building work has sufficiently progressed and so continuing the protections provided by final certificates is proportionate.
45
The building work has sufficiently progressed, and therefore, we do not intend to apply all the requirements of the higher-risk regime. The gateway application requirements (excluding prescribed documents), enforcement powers of the Regulator, dutyholder and competence regulations, functional requirements of building regulations and all regulations related to reviews, appeals and non-determinations procedures will apply. All other regulations will not apply.
46
On completion of building work, the client will need to provide a completion certificate application that meets the information requirements of these regulations, apart from all prescribed documents. If the Regulator is satisfied that the as-built building work is compliant with all applicable building regulations, the client will be issued a ‘transfer and completion certificate’ that will satisfy the requirements to occupy and register the building.
Will building work transferred from private sector building control to the Building Safety Regulator be subject to uplifts to the functional requirements that took place between the initial notice being given to the local authority and the initial notice ceasing to have effect?
47
Yes. The functional requirements at the time the application for building control approval is submitted will apply. However, the Regulator will be able to dispense with or relax functional requirements, including energy efficiency requirements for this building work. The Regulator will take a proportionate approach in overseeing transferred higher risk building work to ensure that building work is compliant with relevant standards, but not unnecessarily delayed.
What happens if the Building Safety Regulator has a different view on a compliance solution I agreed with my previous building control body?
48
While the Regulator will have enforcement powers in relation to higher risk building work that has transferred to its jurisdiction, the transfer is not a mechanism expected to fundamentally challenge building work that is being carried out in accordance with approved plans.
49
The Regulator will work closely with other regulators and will act proportionately, particularly in the first few weeks of projects being transferred to their oversight. Furthermore, the Regulator will be resourced and prepared to support dutyholders to make this transition and to meet the new requirements of the higher-risk regime.
Will building work transferred from private sector building control to the Building Safety Regulator be subject to uplifts to the functional requirements that took place between the initial notice being given to the local authority and the initial notice ceasing to have effect?
50
Where building control approval lapses before 6 April 2024, should dutyholders wish to continue with the proposed building work they must submit a new building control approval application. The building work will be subject to all the requirements of the higher-risk regime and will receive a completion certificate from the Regulator when it is satisfied the as-built building work is compliant with all applicable building regulations.
Tel: 020 7628 7576
To receive more briefings and invitations from Devonshires, click here to join our mailing list.
Note: This Annex B is taken from the Consultation outcome: Government response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings and has been reproduced in accordance with Open Government Licence v3.0, @Crown copyright