The Building Safety Act was introduced as a result of the Grenfell Tower fire, which occurred on 14th June 2017 and resulted in 72 deaths and 70 injuries. This was the deadliest structural fire in the United Kingdom since the 1988 Piper Alpha.

Following the fire, Dame Judith Hackitt led an independent review of Building Regulations and fire safety and produced a report entitled “Building a Safer Future.” This review found numerous failings in the systems in place for ensuring fire safety and compliance with Building Regulations.

The Building Safety Act 2022 implements changes to improve fire safety and strengthen the building safety regulatory system.

The Building Safety Act is a vast, wide-ranging piece of legislation. This document is intended to give an overview of the changes and concentrates on the effect on the construction delivery process.

Clients and Designers are encouraged to conduct further research on the effects of the Building Safety Act 2022 on their businesses and interests.

The Building Safety Act 2022 establishes the HSE as the Building Safety Regulator. The Building Safety Regulator is tasked with:

• Implementing the new, more stringent regulatory regime for higher-risk buildings

• Overseeing the safety and performance of buildings

• Improving competence in the built environment industry and building inspectors

The Building Safety Regulator has strong powers, including the ability to issue “Stop” and “Compliance” notices. These are similar to the HSE’s current Prohibition and Improvement Notices. Stop Notices require non-compliant work to be stopped until the non-compliant action has been addressed, and Compliance Notices require work to be corrected by a given date.

The Building Safety Regulator is able to charge fees for fulfilling their duties. These fees will form either pre-agreed fees for specific services or “fees for intervention” for non-compliance charged at an hourly rate.

The Building Safety Regulator has the power to de-construct elements if they are suspicious of non-compliance. The Building Safety Regulator will also have the power to veto the appointment of Principal Contractors and Principal Designers on higher-risk buildings following the introduction of Gateway Two.

The Building Safety Act 2022 amends the Building Regulations 2010 to create various new Duty Holders.

Accountable Person

This is a new Duty Holder created for High-Risk Buildings. This is a person or organisation who either has the legal estate or is under a relevant repairing obligation for any part of the common parts of the building.

The Accountable Person will have a duty to take all reasonable steps to prevent a building safety risk from happening (spread of fire and/or structural failure) and to reduce the seriousness of an incident if one happens.

Duty Holders

The new Duty Holders’ structure for construction mirrors the Construction (Design and Management) Regulations 2015, but is legally entirely separate from it.

For construction, the Duty Holders will be:

• Client
• Principal Designer
• Designers
• Principal Contractor
• Contractors

The Building Regulations Principal Designer should be the lead designer, and in most instances, it is expected that this will be the Architect for the project.

The Client may decide that the same person or organisation is competent or has the organisational capability to fulfil both roles. However, the Client could make separate appointments for the roles e.g.:

• CDM Principal Designer
• Building Regulations Principal Designer

Notwithstanding, there is an expectation that the Principal Designer for both CDM and Building Regulations will be the same organisation on most projects.

There is considerable overlap in the duties placed upon the new duty holders with those required under the CDM Regulations, with a few notable additions:

The changes place a duty on the Principal Designer to ensure that they co-ordinate matters relating to the design work to ensure that, if built, the designs would result in building works that would comply with the building regulations.

Duties are placed upon each designer to ensure that their own designs comply with building regulations and to raise any issues with compliance with the Principal Designer.

There are corresponding duties placed on the Principal Contractor to ensure that they manage construction to ensure that the building works comply with the building regulations, and duties on contractors to ensure their own works comply with the building regulations.

As with the CDM Regulations, for Domestic Clients, the duties are largely transferred to the Principal Contractor by default unless alternative arrangements are made.

Breaches are punishable with a maximum sentence of two years imprisonment or an unlimited fine.

Clients (Building Regulations)

The Client’s key duties can be summarised as follows:

• Appoint a Principal Designer and a Principal Contractor;
• Make suitable arrangements for planning, managing and monitoring a project;
• Provide building information to every designer and contractor on the project.
• Cooperate and share information with other relevant dutyholders.
• Carrying out competence checks.

Principal Designer (Building Regulations)

The Principal Designer’s key duties can be summarised as follows:

Plan, manage and monitor during the design phase.

• Coordinate matters relating to the design work to ensure that, if built, the design would result in work that complies with building regulations.
• Ensure cooperation, communication and coordination during the design phase.
• Ensure Designers comply with their duties.
• Liaise with the Principal Contractor and share information.
• Assist the client in providing information to other designers and contractors.

Designers (Building Regulations)

A Designer’s key duties can be summarised as follows:

To not start design work unless satisfied that the client is aware of their duties;

• Ensure that their design is such that if built, the design would result in work that complies with building regulations.
• Provide information about design, construction and maintenance;
• Where a designer is carrying out only part of the design of the building work, which comprises a project, the designer must consider other design work which directly relates to that building work and report any concerns as to compliance with all relevant requirements to the Principal Designer;
• Provide advice to the Principal Designer or the client on whether any work, to which a design it is preparing or modifying relates, is higher-risk building work.

Principal Contractor (Building Regulations)

The Principal Contractor’s key duties can be summarised as follows:

Plan, manage and monitor during the construction phase.

• Coordinate matters relating to the building work to ensure that work complies with building regulations.
• Ensure cooperation, communication and coordination during the construction phase.
• Ensure Contractors comply with their duties.
• Liaise with the Principal Designer and share information.
• Assist the client in providing information to other designers and contractors.

Contractors (Building Regulations)

A Contractor’s key duties can be summarised as follows:

• To not start design work unless satisfied that the client is aware of their duties;
• Ensure that their work complies with building regulations.
• Provide each worker under their control with appropriate supervision, instructions and information
• Where a contractor is carrying out only part of the building work which comprises a project, the contractor must consider other work and report any concerns as to compliance with all relevant requirements to the Principal Designer;

Declarations

In order to apply for a Building Regulations completion certificate, the Client, Principal Designer, and Principal Contractor will need to sign declarations confirming that the building complies with Building Regulations.

The Building Safety Act 2022 introduces requirements that will affect the construction and management during the occupation of ‘higher-risk buildings’.

Higher-Risk buildings are buildings in England that are at least 18 meters in height to the finished floor level of the top floor or at least seven storeys above ground and contain at least two residential units.

Additionally, for the design and construction phase (i.e., not during the occupation), care homes and hospitals are considered higher-risk buildings.

The following are not higher-risk buildings: secure residential institutions (e.g. prisons), temporary leisure establishments (e.g. hotels), and military premises (e.g. military barracks).

Gateways

For high-risk buildings only, there will be three gateways:

• Gateway One – Planning Application (this is already in force)
• Gateway Two – Before building works
• Gateway Three – After building works

Gateway One

Gateway One has been in force since August 2021 and requires an applicant to submit a “Fire Statement” to set out the development’s fire safety arrangements with the planning application. The Health and Safety Executive reviews this statement and is a statutory consultee for planning applications.

Gateway Two

Gateway Two will replace the building control deposit of plans stage before building work starts for higher-risk buildings. The Building Safety Regulator will be the building control authority for higher-risk buildings. There will be no option to appoint ‘Approved Inspectors’. Approval from the Building Safety Regulator will need to be obtained before building work can start on site.

Plans and documents will need to be realistic for the building and not rely on unreasonable assumptions about the management, maintenance and behaviours and characteristics of residents in the occupied building once built.

The Gateway Two submission will include:

• Building Control Submission (including full plans)
• Competence Declaration
• Construction Control Plan
• Change Control Plan
• Mandatory Occurrence Reporting
• Building Regulations Compliance Statement
• Partial Completion Strategy
• Fire and Emergency File
• Golden Thread Arrangements
• Planning Statement

The Building Safety Regulator will be able to approve a Building Control Approval application, with or without requirements, or reject it.

The Building Safety Regulator will have to decide on an application for Building Control Approval within 12 weeks.

During Construction

During construction, the Building Safety Regulator will monitor and inspect the site to an agreed inspection schedule. Additionally, Duty Holders will need to:

• Co-operate and co-ordinate their works.
• Follow statutory change control
• Develop and maintain the golden
• Report fire and structural safety occurrences in line with mandatory occurrence reporting

There will be extensive Change Control requirements for design changes during construction, which will require submission and agreement from the Building Safety Regulator.

Gateway Three

Gateway Three will occur after construction. Applicants will need to demonstrate how the building work complies with Building Regulations and will need to assure the Building Safety Regulator that the building is safe to occupy.

Approval must be obtained from the Building Safety Regulator before registering and commencing occupation of a higher-risk building.

The Gateway Three submission will include:

• Gateway One Fire Statement
• Updated versions of all Gateway Two documents
• Building Control Approval
• Compliance Declarations from the Client, Principal Designer and Principal Contractor
• Mandatory Occurrence Reports

The prescribed timescale for Gateway 3 approval is 12 weeks.

Once Gateway Three has been passed, the building must be registered with the Building Safety Regulator for occupation.