Legal Q&A: What’s the latest on building safety regulation?
Laura West, Senior Associate, CMS Cameron McKenna Nabarro Olswang
THE UK construction sector has seen significant changes in building safety regulation in the wake of the Grenfell fire and the Hackitt report. Much of that has come through the Building Safety Act 2022 (BSA) and the secondary legislation implementing it. This article summarises some of the key developments in building safety regulation in the UK this year and what may be on the horizon going forward.
Building Safety Regulator and the gateway regime
The BSA established the Building Safety Regulator (BSR) as the building control authority for higher-risk buildings (HRBs) in England, defined as buildings over 18 metres or at least seven storeys with two or more residential units. The BSA introduced a new gateway regime for HRBs, which requires three gateways to be passed:
- Gateway 1: Applies at the planning stage and requires the applicant to demonstrate that fire safety has been considered.
- Gateway 2: Requires approval by the BSR before construction starts. The BSR has 12 weeks to respond for new buildings and eight weeks for a refurbishment of an existing HRB.
- Gateway 3: Requires BSR sign-off following the application for a completion certificate. The timeframe for BSR approval is eight weeks. It is an offence to occupy an HRB without Gateway 3 sign off.
The timings for passing these gateways will be key when planning projects where occupation is time sensitive e.g. for purpose-built student accommodation that needs to be available at the start of the academic year.
The new gateway regime came into force on 1 October 2023 but with transitional provisions where plans had been deposited and works sufficiently progressed. Those transitional provisions came to an end on 6 April 2024 so now all new HRBs will need to progress through the gateway regime.
Golden thread of information
The BSA requires the creation and maintenance of a digital record of information about the design, construction and operation of HRBs, known as the golden thread of information. The golden thread must be accurate, up to date, kept digitally, secure and transferable. Regulations came into force in January this year which contain provisions dealing with golden thread information during the occupation phase.
The government also published ‘Guidance, keeping information about a higher-risk building: The golden thread’ in February, which emphasised the keeping of information in line with these golden thread principles.
Second staircases
In March, the government amended the guidance in approved document B: Fire safety, volumes 1 and 2, to require flats to be served by more than one common staircase where the building has a top storey of 18m or more in height. This reduced the height threshold from the previously proposed 30m.
The amendments take effect on 30 September 2026, subject to transitional provisions. Whether developers take advantage of this long lead in remains to be seen. It’s possible that some may adopt the more rigorous regime now to protect asset value going forward.
Divergence between England, Wales and Scotland
Much of the BSA applies only to England and Wales with more limited provisions applying to Scotland leading to possible divergence in regimes north and south of the border. Wales is also given autonomy to legislate to provide its own definition of HRBs and to change its building regulations and building control procedures. In January, the Welsh government adopted a slightly different definition of HRBs to England in that it need only contain one residential unit rather than two.
Much of the BSA applies only to England and Wales with more limited provisions applying to Scotland leading to possible divergence in regimes north and south of the border. Wales is also given autonomy to legislate to provide its own definition of HRBs and to change its building regulations and building control procedures.The Scottish government has already banned the use of metal composite material panels on all residential buildings and combustible cladding systems on high-risk residential buildings. However, whether Scotland will adopt such an overhaul of the building control system as has taken place in England with the BSR remains to be seen.
In May, the Scottish Parliament passed the Housing (Cladding Remediation) (Scotland) Bill. The new act gives the Scottish government powers to assess cladding safety and organise repairs through a single building assessment.
The act applies to all buildings that have undergone construction or development between June 1992 and June 2022, are over 11m, incorporate a form of external wall cladding and include at least one flatted-dwelling. The act also establishes a cladding assurance register to provide residents with confidence in the assessment and remediation works undertaken on their buildings. The new act is yet to receive Royal Assent so it is, as yet, unclear when it will come into force.
Separately, the UK government has also confirmed the devolution of tax powers to the Scottish government to introduce a building safety levy similar to that in England.
First cases interpreting the BSA
In January, the First Tier Tribunal granted the first contested application for a remediation contribution order (RCO) under section 124 of the BSA, which allows building owners to seek contributions from developers towards cladding remedial works. The FTT confirmed that RCOs could be made in respect of costs incurred before the BSA came into force.
It also set out the factors on which it was just and equitable to grant such an order which are likely to be relevant in future cases (Triathlon Homes LLP v Stratford Village Development Partnership (2024) UKFTT 26 (PC)). In URS Corporation Limited v BDW Trading Limited (2023) EWCA Civ 772, the Court of Appeal provided guidance on a developer’s right to bring claims under the Defective Premises Act 1972 (as amended by the BSA) and the operation of the retrospective 30-year timescale for such claims which had been subject to much comment during the passage of the BSA through parliament. Permission to appeal this decision to the Supreme Court was granted at the end of 2023 and so we could hear further on this in 2024.
Conclusion
The UK government has said that the BSA introduces the biggest changes to building safety in a generation. While court decisions and additional legislation this year have provided some further clarity on these changes, the full practical impacts remain a developing picture and divergence within the UK remains likely as the devolved administrations catch up with the progress so far made in England.
Laura West, Senior Associate, CMS Cameron McKenna Nabarro Olswang