Chapter 6
Transitional Arrangements
This chapter – at a glance
- Transitional arrangements in secondary legislation
- The HRB framework
- The new regulations do not just concern HRBs
- Transitional provisions – a review of the drafting
- The policy behind the secondary legislation
- Recent HSE Guidance – transitional arrangements
- Keeping the BSR informed
- The Consultation Outcome – transitional arrangements for the HRBs: DLUHC factsheet
- Transitional Arrangements Flowchart: October 2023 – April 2024
Transitional arrangements in secondary legislation
Transitional arrangements apply for a specified period from the date a statutory instrument comes into force. In the context of construction works, they allow defined projects that are already under way at the date of commencement of the relevant regulations to proceed under the outgoing regime. Transitional arrangements are effected through secondary legislation, and the detail within the subordinate legislation will set out how they are intended to work.
In the context of building and fire safety, it is important to understand that the detail of the regulatory changes being made is being introduced through multiple statutory instruments. Depending on the nature of the project and the extent to which it has progressed, the relevant stakeholders will need to look at both the transitional arrangements provided in each statutory instrument as well as how these arrangements align and operate alongside one another.
The HRB framework
In relation to its provisions that govern the procurement of new HRBs, the refurbishment of existing HRBs and the management of completed HRBs, the cornerstone of the BSA is the creation of a ‘more stringent’ regulatory building and fire safety framework that applies to HRBs in England – an overarching framework comprised of two interlinking regimes that place duties on certain defined persons:
1. first, during the procurement stages of an HRB – particularly, the design and construction stages of the project (HRB Procurement Regime); and
2. second, post completion of the construction work, the occupation phase of the completed HRB (HRB In-Occupation Regime).
The new regulations do not just concern HRBs
As much of the noise and news that has surrounded the government’s flagship building safety campaign has concentrated on HRBs, it is easy to forget that the wider scope of the changes ahead also relates to buildings that are not HRBs (non-HRBs) as well as all building projects.
The table below highlights the key regulations before we turn to the transitional arrangements:
Secondary legislation / statutory instrument
Subject matter
Transitional provisions
The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023
(BAIROD)
Government policy is to:
- implement change within the building control profession; and
- strengthen the building sector by raising competence levels and accountability.
Effect:
- a strengthening of the building control process and robust oversight of building work;
- amendments to the Building (Approved Inspectors etc.) Regulations 2010;
- new oversight regime for building control bodies and building control inspectors; and
- procedural changes.
Part 4
The Building Regulations etc. (Amendment) (England) Regulations 2023
(BRA)
New Part 2A – new dutyholder requirements.
Various other changes to the Building Regulations (that apply to all buildings within the scope of the Building Regulations), including Regulation 38 which specifies the fire information to be provided before completion of the Works.
Part 4
The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
(PROCEDURES)
Relates to the HRB Procurement Regime – new HRBs, existing HRBs, making changes to the Works both before and during the construction period, ‘MOR’ (the mandatory occurrence reporting system for the HRB Procurement Regime – which is separate from the HRB In-Occupation Regime MOR), inspections and completion, the ‘Golden Thread’ and information handover and transitional arrangements
Schedule 3
Transitional provisions – a review of the drafting
When reviewing the above regulations, we noticed errors in the drafting of some of the secondary legislation provisions, as well as what we would term ‘circular drafting’ in the transitional provisions in the BAIROD and BRA regulations. By ‘circular drafting’, we mean wording in the transitional provisions of those regulations that refers the reader to Schedule 3 (Transitional, supplementary and saving provisions) of the main PROCEDURES regulations, but Schedule 3 does not set out the position clearly and unambiguously, resulting in confusion. Specifically, it is the provisions governing the application of the new dutyholder requirements in the Building Regulations to HRBs that benefit from the transitional arrangements that are unclear, and we have written to DLUHC requesting clarification.
The policy behind the secondary legislation
Given some of the ambiguous drafting, we have taken a pragmatic view of the way the transitional arrangements in BAIROD, BRA and PROCEDURES interrelate and are intended to operate. Our approach is based on DLUHC policy as set out in its Consultation Outcome – Government response: implementing the new building control regime for higher-risk buildings & wider changes to the Building Regulations for all buildings (Consultation Outcome) published in August at the same time as the new regulations.
Running to almost 180 pages, the Consultation Outcome is a mighty tome, but gives an indication of government policy development. In relation to the transitional arrangements that apply to HRBs in the secondary legislation, the practical way to interpret these is:
- where a project is under way (in accordance with the specified criteria) as at 1 October 2023 (see the detail below), and was started under the outgoing regime, it should continue and proceed and complete under that regime (unless specified events occur); and
- as the transitional arrangements in both BAIROD and BRA refer to Schedule 3 of the PROCEDURES regulations, that schedule must take priority.
Accordingly, the remainder of this section is focused on the provisions of Schedule 3 (Transitional, supplementary and saving provisions) of the main PROCEDURES regulations and the policy guidance given in the Consultation Outcome. The Transitional Arrangements Flowchart produced by DLUHC (which appears at the end of the Consultation Outcome, and which we have reproduced at the end of this chapter) is helpful.
Recent HSE Guidance – Transitional arrangements
In August, the HSE produced a useful guide: Building Control: An overview of the new regime Gateways 2 and 3 – application to completion certificate. Pertinent to this chapter is the section on Transitional arrangements. We have set out part of that section below and added our comments.
Set criteria will be applied to the HRB Procurement Regime to allow certain projects that are ‘under way’ to continue under the current framework.
For the transitional arrangements to apply to HRB work, the following conditions must be met:
1. (a) an initial notice must have been given to a local authority (and accepted or deemed to be accepted); or
(b) full plans must have been deposited with a local authority (and not be rejected),
before 1 October 2023 – the date on which the regime comes into force; and
2. the HRB work must be “sufficiently progressed” within six months of the new regime coming into force – by 6 April 2024.
Points to note:
- If the building work is subject to an initial notice – 1(a) above – the approved inspector overseeing the project will need to be registered as a building control approver by the start of the registered building control approver regime – by 6 April 2024.
- The Consultation Outcome: Changes to the building control profession and building control process for approved inspectors, published in August, states (§10) that the BSA provides for registered building control approvers to take over from approved inspectors (by repealing section 49 of the Building Act 1984) and the approved inspector registration regime will conclude on “day one of the new registered building control approver regime” (RBCA Regime), following which approved inspectors will not legally be able to submit a new initial notice or supervise any new work. This is an important point for clients to note and there are practical issues that need to be considered. Please contact us for advice.
- 1 October 2023 falls on a Sunday, and 6 April 2024 falls on the Saturday that follows Easter 2024 (and the two public holidays either side of that weekend). It is therefore of paramount importance that those who are concerned with the transitional arrangements understand the implications of these dates falling on weekends.
- The Government Outcome: New building control regime for HRBs and wider changes to Building Regulations for all buildings, also published in August, makes express reference (§11.18) to the definition of “sufficiently progressed”: see below (and also §17-20 of Annex B to the Consultation Outcome further below in this chapter).
HRB projects that satisfy the above two criteria will be able to proceed through to completion under the outgoing regulatory framework: importantly, Gateways 2 and 3 (see Chapters 7-10) will not apply. However, should the HRB project not meet these criteria, the project will pass to the BSR and be subject to the new HRB Procurement Regime (detailed in Chapters 7-11).
In addition, it is important to note that:
- the HRB Procurement Regime applies to both new HRBs and existing HRBs, unless the transitional arrangements apply; and
- even where an HRB project has the benefit of the transitional arrangements, the completed (or refurbished) HRB will need to be registered with the BSR prior to occupation (and, in order to register an HRB, a completion certificate from the building control body will be needed: it is an offence under Sections 76 and 77 of the BSA to occupy an HRB without registering or without a completion certificate).
For projects that do not go through the new HRB Procurement Regime, consideration needs to be given, as a matter of priority, to the plethora of new duties that form part of the HRB In-Occupation Regime, in particular those that concern the provision of information (such as the Golden Thread requirements and the requirements of the amended Regulation 38 of the Building Regulations).
“Sufficiently progressed” work is defined in Schedule 3, Part 1, paragraph 1.(6) of the PROCEDURES regulations as:
For the construction of a new HRB
when the pouring of concrete for the permanent placement of the trench, pad or raft foundations, or the permanent placement of piling for that building has started.
For work to an existing building
when that work has started.
For a material change of use to a building
When work to effect that change of use has started.
Where an application has been made but the work has not “sufficiently progressed” within six months, on 6 April 2024, the initial notice covering the HRB work will lapse and the HRB work will transfer to the BSR and the HRB Procurement Regime will apply, albeit with some modifications.
Where an application has been made, sufficient work has been carried out, but the building control body has not become a registered building control approver, the initial notice will be cancelled on 6 April 2024 and the dutyholder will have to submit a valid application to the BSR, for building control approval to continue building work ‘at risk’, following which the higher-risk regime will apply to this work, overseen by the BSR, and specific requirements imposed will take into account that the transferred work is “sufficiently progressed”.
The BSR will assess works already carried out on site but cannot enforce against any building work that has received a final certificate from private sector building control. The same process applies where an initial notice covering HRB work is cancelled for any other reason from 1 October 2023 and the work has “sufficiently progressed”.
If no application or initial notice has been made for building work, the HRB work will become subject to the new HRB Procurement Regime immediately and will be overseen by BSR.
Projects currently in the design stage will have to be planned and managed to ensure they are suitably developed to reflect the new process and the requirements that must be satisfied for Gateway 2 and Gateway 3.
Transitional Arrangements – application to individual buildings
The transitional provisions and the 6-month transitional period will apply to individual HRBs that are within scope. The approach taken is designed to prevent dutyholders from being able to sufficiently progress work on one building on a multi-building site and then claim the benefit of the transitional arrangements in relation to all buildings on the same site.
In addition, when applying the provisions to individual buildings, it is important that dutyholders and building control bodies fully understand the definitions of an HRB. This is covered in Chapter 2.
Where newbuild HRB work has sufficiently progressed, the building work will not be subject to the requirements of the new HRB Procurement Regime: the work can continue under the current (outgoing) regime and continue to be overseen by the relevant local authority or private sector building control.
However, where new building HRB work has not sufficiently progressed or the approved inspector has not registered, the building work will transfer from their building control body under the current regime to the jurisdiction of the BSR and become subject to the HRB regime.
While the BSR will have enforcement powers in relation to HRB building work that has transferred to its jurisdiction, the transfer is not a mechanism to fundamentally challenge building work that is being carried out in accordance with approved plans.
Keeping the BSR informed
The BSR will need to be informed where work has not sufficiently progressed. In order to ensure a smooth transfer from current building control bodies to the BSR, interested parties will need to comply with the detailed transitional arrangements which will necessitate an engagement process between them to make sure that all persons involved are aware of their roles and responsibilities.
The Consultation Outcome – Transitional arrangements for the HRBs: DLUHC factsheet
Given the Consultation Outcome was published the same day as the secondary legislation mentioned above, we reproduce Annex B in its entirety below:
Transitional Arrangements Flowchart: October 2023 – April 2024
Flowchart reproduced in accordance with the terms of the Open Government Licence (@Crown copyright).
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