Chapter 4
Changes to Building Control in England: The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023
This chapter – at a glance
- Changes to the building control application process and appeals
- Applications for building control approval for HRBs
- Applications for building control approval for ‘non-HRBs’
- What happens if an application is rejected?
- The First-tier Tribunal (FTT)
The Building Safety Act 2022 (Consequential Amendments etc.) Regulations 2023 (Consequential Amendments)
A short statutory instrument, this piece of secondary legislation makes a number of key amendments that reflect Part 3 of the BSA, and which are consequential on the provisions of Part 3 of the BSA coming into force.
Part 3 of the BSA is headed ‘Building Act 1984’. Its 30 sections are set out under three headings – Building control authorities and Building Regulations, Building control approvers and building inspectors and Miscellaneous and general. Part 3 sets out various important amendments to the Building Act which include:
- defining HRBs (see Chapter 2);
- enhanced building control profession requirements (see Chapter 3);
- a new dutyholder regime that applies to building work, and competence requirements (see Chapter 5);
- what has been termed a ‘gateway process’ for HRBs (see Chapters 7-11); and
- enforcement processes.
The Consequential Amendments replace references in the primary legislation to the deposit of plans with references to applications for building control approval. They also include consequential amendments that reflect that the BSA transfer procedures for appeals under the Building Act from the Magistrates’ Court to the First-tier Tribunal. This is required in local acts where additional building control requirements have been imposed that include a right of appeal to the Magistrates’ Court.
The Consequential Amendments – key points to note
There are two key takeaways to note in respect of the Consequential Amendments:
- in relation to HRBs, rather than depositing plans with the local authority, applications for building control approval now need to be made to (and they will be overseen by) the BSR; and
- appeals pertaining to building control applications will now be dealt with by the First-tier Tribunal, rather than the Magistrates’ Court (as was previously the case).
Applications for building control approval for HRBs
The changes codified in the Consequential Amendments largely relate to the repeal of section 16 of the Building Act by virtue of paragraph 20 to Schedule 5 of the BSA.
Section 16 of the BA previously provided that (emphasis added) “where plans of any proposed work are, in accordance with Building Regulations, deposited with a local authority, it is the duty of the local authority, subject to any other section of this Act that expressly requires or authorises them in certain cases to reject plans, to pass the plans…”.
However, the deposit of plans for proposed building work with local authorities in respect of HRBs will now be replaced. As of 1 October 2023, applications for building control approval for HRBs will now need to be made, and those applications will be overseen by the BSR. The BSR, which sits within the Health and Safety Executive, has been established to regulate HRBs and its overarching objectives include securing the safety of people in and around buildings, and improving building standards.
Applications for building control approval for ‘non-HRBs’
It is important to note that, whilst the BSR will have oversight of building control applications in respect of HRBs, local authorities will remain responsible for non-HRB work.
Therefore, two distinct building control regimes will be applicable:
- one for HRBs (the BSR); and
- the second regime for non-HRBs (local authorities).
What happens if an application is rejected?
The second main point addressed in the Consequential Amendments is the transfer of building control appeals under the Building Act to the First-tier Tribunal; it was previously the case that appeals of that nature would need to be made to the Magistrates’ Court.
As the First-tier Tribunal is a relative ‘newcomer’ to hearing pure construction matters (the tribunal’s first foray into the construction arena came about by virtue of the jurisdiction granted to it to decide applications for Remediation Orders and Remediation Contribution Orders under sections 123 and 124 of the BSA respectively), a summary of this tribunal is provided below.
The explanatory memorandum that was published alongside the Consequential Amendments explains that, by granting the First-tier Tribunal the jurisdiction to determine the sorts of applications referred to above (i.e., Remediation Orders and Remediation Contribution Orders), as well as granting it the power to decide appeals in respect of building control applications, the tribunal will be able to develop expertise in building safety matters.
What is the First-tier Tribunal?
The First-tier Tribunal (Property Chamber) (FTT) is one of seven chambers of the First-tier Tribunal.
The FTT’s practice and procedure is governed by its ‘overriding objective’, which is to make sure cases are dealt with fairly. Any order made by the FTT may be enforced, with the permission of the county court, in the same way as a county court order. Compared to County/High Court matters, proceedings in the FTT are informal and the tribunal has particular expertise in hearing complex disputes regarding property and land.
The FTT can only reach a decision once a (public) hearing has taken place and the panel can ask questions of anyone involved in the application who is at the hearing. A decision may be given verbally at the conclusion of a hearing, but in all cases the FTT must provide both parties with a written decision, as soon as possible (typically within 4-6 weeks), setting out reasons for that decision, together with details of any rights to appeal (which can be made to the Upper Tribunal, provided permission to do so has been granted by the FTT).
A party can apply for an order for the FTT to award costs at any time during the proceedings, or within 28 days after the decision date. Those applications are decided either by the FTT making a summary assessment, or by agreement of the parties.
When do the Consequential Amendments come into force?
Regulation 17 (the ‘Transitional provision’) provides that the consequential amendments in the instrument do not apply to plans for building work which were deposited with a local authority before the date on which the Consequential Amendments come into force (1 October 2023). This is to align with transitional provisions for the new building control regime which will also not generally apply to building work for which plans were deposited before the new regime came into force.
Conclusion
The Consequential Amendments comprise just one piece of the “jigsaw” of the secondary legislation that is being introduced under the BSA. Therefore, not only will it be necessary for affected parties to understand what each set of regulations does and how they operate, but also to appreciate the way in which the new instruments tie together and inter-link with one another.
In terms of the Consequential Amendments themselves, it will be important for RPs and other housing providers to be mindful of the new process which will need to be followed concerning obtaining building control approval in respect of HRBs, as not doing so might lead to unnecessary and avoidable delays to projects. Further, it will be interesting to monitor how the BSR – as the new body overseeing those applications (as opposed to the relevant local authority) – will take to one of many of its new functions. Given that the BSR is in its infancy, it would be prudent to make allowance for additional time for building control applications to be processed, whilst the transition from local authorities to the BSR takes effect.
Finally, the extension of the FTT’s jurisdiction into construction related matters continues and whilst we have recently seen the first wave of jurisprudence start to develop with regard to Remediation Orders and Remediation Contribution Orders, it will be interesting to see how the FTT will approach appeals pertaining to building control applications.
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