Chapter 3

Changes to Building Control in England: The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023

This chapter is focused on The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023, which we refer to, in this chapter as BAIROD.

This chapter – at a glance

  • We look at the changes to the Approved Inspector regime.
  • We consider how the additional requirements of the dutyholder and competence regime in the Building Regulations will be implemented by Approved Inspectors and their replacement, registered building control approvers.
  • We summarise the transitional provisions dealing with any building an initial notice was given before 1 October 2023.

BAIROD – What do these regulations do?

Gargantuan in terms of its length and scope, the BSA will, once completely in force, introduce radical (even revolutionary) new provisions. The changes it will effect include:

1. the new BSR acting as the building control authority for all HRBs in England;

2. a new regulatory regime for the building control profession under which ‘Approved Inspectors’ (AIs) will be replaced by registered ‘Building Control Approvers’;

3. the introduction of new dutyholder and competence requirements in the Building Regulations which are set out in a new Part 2A; and

4. the automatic lapse of the initial notice, where work is not commenced within 3 years of the giving of the initial notice.

BAIROD creates new provisions under the Building Act and makes consequential amendments to the Building (Approved Inspectors etc.) Regulations 2010 (AI Regulations) to facilitate these objectives and to provide transitional arrangements that will govern projects under way until the new building control regime is in place.

BAIROD reflects several of the Government’s proposed objectives arising out of the outcome of their consultation on implementing the new building control regime for HRBs and wider changes to Building Regulations for all buildings that was published in August 2023 (and a link can be found in Chapter 1). These include:

  • the intention for dutyholder and competence requirements to be regulated by both the public sector for HRBs and the private sector registered building control approvers, with underlying powers to serve contravention notices and cancel an initial notice, meaning enforcement will revert to local authorities;
  • an appeal process for building control decisions to the First-tier Tribunal and;
  • thought-out transitional provisions applying to all buildings, or proposed buildings, where works are underway or shortly to be commenced.

HRBs – Detailed legislative definition

As part of the wider changes to the Building Control process in England, the wave of new regulations implements two new, more stringent regimes for HRBs. Stakeholders need to master what is and isn’t caught within the scope of the HRB for the purposes of each regime: see Chapter 2 of this Toolkit.

BAIROD – The detail

The key changes are:

1. The role of the AI is expanded to include taking reasonable steps to be satisfied that the new dutyholder and competence requirements under Part 2A of the Building Regulations. To facilitate this:

a. the client must notify the AI of the appointment and changes of the principal (or sole) contractor and principal (or sole) designer; and

b. the client must provide the AI with statements from the principal contractor, the principal designer, and itself that each has fulfilled its obligations in this regard.

2. Where an AI considers those requirements have been contravened, the AI is given the power to serve a notice of contravention specifying the requirements that have not been complied with. If these are not remedied within three months, the AI must cancel the initial notice. (Under the existing AI Regulations, when an initial notice is cancelled, the building control function reverts to the local authority which can include requirements to demonstrate to the local authority that works done to date have complied with the Building Regulations.)

3. The 'lapse’ provisions:

a. “Commencement” is now defined in Regulation 16C of the AI Regulations:

(2) Where the work consists of the construction of a complex building, work is to be regarded as commenced in relation to that building or the first stage of building work for that building when the foundations supporting the building and the structure of the lowest floor level of that building (but not the other buildings or structures to be supported by those foundations) are completed.

(3) Where the work consists of-

(a) the construction of a building and paragraph (2) does not apply; or

(b) horizontal extension of a building;

Work is to be regarded as commenced when the sub-surface structure of the building or the extension including all foundations, basement levels (if any), and the structure of ground floor level is completed.

(4) Where the work consists of any other building work then work is to be regarded as commenced when the initial work is completed.

(5) In this regulation-

“approved plans” means plans which were part of, or accompanied the initial notice, or plans to which a plans certificate is referred;

“complex building” means-

(a) A building which is to be constructed on the same foundation plinth or podium as any other building or structure;

(b) a building which has more than one storey below ground level;

(c) a building where its proposed use is primarily as a public building where the public, or a section of the public, has access to the building (whether or not on payment) provided that the building has a capacity for 100 or more visitors;

“initial work” means the work set out in the initial notice which the client considers amounts to 15% of all the work described in the initial notice;

“public building” means-

(a) a shop or shopping centre;

(b) premises where food or drink are sold for consumption on the premises, including a nightclub, social club or dance hall;

(c) a stadium, theatre, cinema, concert hall;

(d) a sports ground;

(e) an exhibition hall or conference centre;

(f) a hospital or premises for the provision of health care.

b. The initial notice must now include the date when the work is to be regarded as commenced or, where the work is “any other building work” within the definition of “Commencement” extracted above, details of the work which the client considers amounts to 15% of the proposed work. Failure on the part of the client to do so is a ground for the AI to reject the initial notice.

c. The client will be required to give the AI at least 2 days’ notice of the date on which building work is to start and notice that it has actually started not more than 5 days after it has begun. If the AI is not satisfied that the work has started, the AI must give a rejection notice.

4. The Government’s intention for non-HRB work remaining with local authorities is explained in the BAIROD explanatory memorandum that was published alongside (and accompanies) the regulations. This memorandum references changes to the AI Regulations effected by BAIROD:

7.13 For non-HRB work that is not overseen by the BSR, we expect local authority building control teams and approved inspectors to take a risk-based approach that is proportionate to the nature and scale of the project, and the level of risks involved. The expectation is for local authority building control and approved inspectors to hold dutyholders to account in delivering their duties and with regard to the competence requirements. To support the enforcement of these requirements we have amended regulation 18 of the AI Regulations, so that where an approved inspector considers any of the dutyholder and competence requirements have been breached, it must send a notice of contravention to the client explaining that if the breach is not remedied within a period set out in the notice the approved inspector will cancel the initial notice. These requirements will apply from October 2023, with certain exceptions should building work have commenced by April 2024. These exceptions include work for which either an initial notice was given to and has been accepted, or deemed to be accepted, by a local authority before that date, full plans have been deposited with the local authority and have not been rejected, or a building notice has been given for work to which a Fire and Safety Order does not apply.

BAIROD – The transitional arrangements

The transitional provisions included within BAIROD are as follows:

1. Certain specific provisions, set out in BAIROD, will not apply if the initial notice was deposited before 1 October 2023; However, as 1 October falls on a Sunday, the reality is that the notice must be deposited no later than the end of the week before. The BAIROD provisions that will not apply are (Regulation 20(1))- those pertaining to:

a. the dutyholder and competence requirements;

b. the AI’s ability to serve a contravention notice and cancel the initial notice; and

c. the requirements to provide fire safety information in order to receive the final certificate.

2. The transitional benefits will, however only apply if the building work described in the initial notice has commenced before 6 April 2024 (failing which, BAIROD will apply in its entirety). It is worth noting that 6 April next year falls on a Saturday; again, this means that building work will need to be commenced no later than by the week before (Regulation 20(2)).

3. If, by 6 April 2024, the AI has become a qualified registered Building Control provider, then initial notices given before 6 April 2024 will be treated as if given in their capacity as Registered Building Control Approver (Regulation 23).

4. If an initial notice has been given before 6 April 2024, but a final certificate has not been given before 1 October 2024, then the initial notice will cease to be in force - but this does not apply if the initial notice is deemed to have been given by a registered Building Control Approver as in Regulation 23 (Regulation 24).

An important point to note that Regulation 25 provides that Regulations 20-24 of BAIROD (summarised above) do not apply to HRBs: their transitional arrangements are dealt with in a separate statutory instrument altogether – The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, which are considered in Chapters 7-11 of this Toolkit and the transitional arrangements in Chapter 6.

Conclusion

While Approved Inspectors are to be replaced by registered building control inspectors and approvers, BAIROD gives some insight into how the role will change, and the additional powers that are given to these professionals to enforce compliance with the dutyholder and competence requirements for all buildings. This is of wider application than HRBs.

The transitional provisions provide helpful clarity as to the developments which will and will not be caught by the new requirements, but the window to fit into those transitional categories was largely effectively passed by the time these regulations were published.

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