What the Building Safety Act 2022 means for construction clients - Part 2

Higher-risk buildings: what clients need to know.

Last updated: 19th January 2024

Aimed at construction clients and following on from part one of our two-part blog about the Building Safety Act 2022, here we consider the new, more stringent building control regime for so-called higher-risk buildings in England. 

Requiring significantly more upfront resolution of your plans before you can start building and able to stop both ongoing work and post-completion occupation, the new regime looks likely to trip up the unwary.

This blog will help you to avoid that risk by summarising the new procedures and highlighting their implications for relevant construction clients. This means anyone who, under the Building Safety Act, takes on the Client dutyholder role.

The Grenfell Tower fire highlighted the exceptional risks associated with tall residential buildings and the extent to which the then-current building control regime was unable to assure the safety of these buildings’ occupants. 

After consultation, the Department for Levelling Up, Housing and Communities (DLUHC) calculated that the fire and structural safety risks are so severe in these buildings that they deserve a separate building control regime overseen by a new Building Safety Regulator (BSR).

The new, more stringent regime for these so-called ‘higher-risk buildings’ (HRBs) was introduced in the Building Safety Act 2022 (BSA), and its procedures came into force on 1 October 2023. They have far-reaching implications for you, the person with Client duties under the BSA. 

(Note that, under the BSA, an Accountable Person or Principal Accountable Person for an HRB can also take on the dutyholder role of Client when undertaking work on that HRB.)

The ‘Gateways’ Concept

Although the terminology of ‘gateways’ to describe the new regime’s stop-go stages does not appear in the legislation, the industry continues to use it because it makes it easier to understand the overall concept. 

There are three gateways, each policed by the relevant authority. The subjects of this blog are gateways two and three. 

(For completeness, gateway one is where you secure planning permission but, since it is unrelated to the BSA, it is beyond the scope of this blog.) 

Gateway two is where you secure building control approval from the BSR. You must not start construction work until then (although you may start some enabling works).

Gateway three is where you secure a completion certificate, again from the BSR. The building affected by construction work must not be occupied until then.

To proceed through gateways two and three, the BSA and its associated procedural regulations insist that work stops until the BSR has approved plans (gateway 2) and occupation is delayed until they have issued a completion certificate (gateway 3). The BSR also have the power to stop parts of the construction work if it diverges from the agreed plan. 

Ultimately, approval depends on BSR seeing evidence that your project complies with relevant requirements, is likely to be well managed, and creates, maintains, and hands over the golden thread of information. 


What is the golden thread of information?

The ‘golden thread of information’ is one of the chief innovations under the new regime.

Ethically inspired, it is any secure digital system capable of capturing and sharing all the information about the design and construction work needed for the building’s future management and maintenance. Used and updated responsibly, the hope is that this information will minimise health and safety risks for occupants. 

The idea is that there is one lasting repository for all this information – ‘one source of truth’ – that can easily be accessed, understood and used by the building’s future occupants (e.g., Accountable Persons), and easily shared with those who need it, including residents and emergency responders. It is also intended to be used by project teams when subsequent construction work is carried out.

While establishing the golden thread of information seems onerous at first sight, it has significant upsides. In being forced to think about occupants’ safety needs from the very start of your project, you are more likely to identify and thus have the chance to avoid related risks, with the advantage also of avoiding unforeseen delay and cost during construction and reducing your long-term liabilities. 

BSR relies on the golden thread of information procedurally. It is an essential element in a package of information that assures them that your initial application and application for a completion certificate are valid and provide sufficient evidence to decide on your applications.

You are ultimately responsible for ensuring that arrangements for the golden thread of information are in place and operate effectively. Of course, you are likely to want to formulate and agree them in consultation with relevant actors in your project team. (Indeed, your principal dutyholders have specific duties to help you in that regard.) 

You are also responsible for resourcing suitable digital systems for storing it.

What are HRBs?

In England, a HRB is any occupied building that is at least 18 metres in height or has at least seven storeys and contains at least two residential units.

Inconveniently, descriptions of types of buildings included, and the definitions of terminology (such as the building’s height and what counts as a storey) are set out separately, the former in the BSA, the latter in The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.

Since these definitions and descriptions have the potential to confuse, DLUHC published useful criteria, which greatly clarifies the detail.


Which projects are affected?

You must follow the new regime if your project is in England and you: 

  • plan to build a new HRB;  
  • create an HRB through change of use; or  
  • plan to undertake building work to an existing HRB.


What happens to projects that were already under way?

Whether HRB projects that were already under way before 1 October 2023 are caught by the new rules depends on how advanced they were on that date.

HRB projects that had secured an initial notice or deposited full plans with their local authority by 1 October 2023 can proceed under the old building control regime, provided:

  • the applications to the local authority are not rejected
  • construction work is sufficiently progressed by 6 April 2024
  • their building control approvers have become registered building inspectors before 6 April 2024.

Those that were not must follow transitional arrangements under the new building control regime.

It is worth noting that regardless of which building control regime your HRB completes under, you must still register it (see how) with BSR prior to occupation. Also, even if your HRB is eligible to complete under the old regime, you will still have responsibilities to Accountable Persons on occupation and so it will pay you to set up and operate a system for operating a golden thread of information.


What are the new building control procedures?

Procedures for the new building control regime are set out in The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, which are summarised below.


How does BSR assess applications?

The BSR’s HRB building control role is carried out, in exchange for various fees, through a multi-disciplinary team. They must have time to carry out their regulated role, which includes liaison with statutory consultees. 

Unlike the old regime, the new regime requires you to have refined your design and worked out your processes comprehensively before you apply. In the application, this must be evidenced in many documents that BSR will depend on to approve your project. 

Since no construction work can start before approval and refusal could add delay and cost, you should focus on ensuring not just that you have ticked all the information-supply boxes but that the information is clear and easy to understand.

While you must approve the overall approach taken in your application, you are very likely to depend on your appointed dutyholders for the technical detail in this package of information. This emphasises the importance of appointing competent people to these roles.

All applications must go directly through the BSR. You may not use private sector approved inspectors. 

At Gateway Two

At Gateway Two, BSR requires you to submit the following:

  • Competence declaration. You, or someone on your behalf, must sign a declaration that you have assessed your current team’s competence to discharge their responsibilities and are satisfied that they meet the minimum threshold. 

    Indeed, you must ask prospective appointees whether they have received a serious sanction in the last 5 years.

    If you discover that they have had a serious sanction, weigh this information in your decision to appoint.

    You must record in writing the steps you took to assure yourself of the appointees’ general and role-specific competence, and their ability to plan, manage and monitor their work.

  • Drawings and plans. You must supply sufficient drawings and plans (as PDFs) to show how you will meet the building regulations. To make life easier for the BSR, your plans and drawings should be organised so that they can be accurately and easily referenced in other documents in your application.
  • Building regulations compliance statement. This is a method statement demonstrating how you intend the scheme to comply with relevant requirements of the building regulations, and why you adopted your approach over alternatives. 
  • Change control plan, including a change control log. This is a system for how you intend to control the changes that inevitably happen during the construction phase of a project. Every unplanned change risks compromising compliance and deviating from the outcome approved by the BSR and so must be treated with care. 
  • Construction control plan. This is your plan for how the construction works will be managed so that, on completion, your HRB complies with relevant requirements. Focusing strongly on cooperation and coordination in the project team through competence and good communication, it should set out strategies for evidencing compliance and a system for controlling changes. As well as helping you to control the project, the document has practical value in communicating your strategy to everyone on the project team.

    It should detail:

    • The work to be carried out
    • All the dutyholders and what each is responsible for on the project – probably best set out in some form of RACI (responsible, accountable, consulted, informed) matrix.
    • The strategies to encourage cooperation between project team members and others involved in the project. (See this Government-sponsored guidance to find out how this can benefit you.)
    • The arrangements (policies and procedures) for ensuring that the project team knows how to operate the various systems, including:
      • The system for managing the construction work
      • The system for controlling changes in accordance with relevant requirements
      • The system for managing the golden thread of information – probably best if it conforms to the ISO 19650 series of standards.
  • Fire and emergency file. This document assures the BSR that implications of the design for managing building safety risks by eventual occupants are properly considered up front. 

    It must describe the strategies clearly, set out why their underpinning design assumptions are reasonable, and explain how their adoption appropriately mitigates the risks for occupants.

  • Mandatory occurrence reporting plan. This document explains your system for reporting certain occurrences that threaten the safety of eventual users of the HRB. It includes a statement that you are satisfied that the system is in place and that it is sufficient.

    The only occurrences mandated are those that present a risk of death or serious injury to a significant number of people, and are therefore usually limited to risks from fire or structural failure.

  • Partial completion strategy (optional). Where you propose occupation of part of the building before the HRB work is fully completed, you must document your strategy for doing so and include it in your initial application. It must demonstrate that the safety of occupants will not be compromised. 

The BSR has 12 weeks to assess an application to build a new HRB, and eight weeks to assess an application to carry out building work on an existing HRB.

The BSR may request more information or changes to your application when they receive it, which could entail extra time, which must be agreed with you.

They will give you their decision in writing. Approval lasts for as long as you continue to meet their conditions, which include you doing as you describe in the application and adhering to:

  • an inspection schedule for the building work;  
  • the documents that you must maintain for the duration of the project;  
  • a suite of requirement notices, if applicable; and  
  • an inspection schedule that includes notification points where work will be assessed before that element of the project can progress. 

You may ask for any condition imposed by BSR to be changed, provided you have good reason.


Part Applications

BSR will accept applications for parts of the project if you cannot viably complete the whole project in one go.

Even so, you must work out the whole project fully before you make the first application. In particular, your application must include full descriptions of and a works schedule for all the other parts of your scheme. 

The descriptions must include enough detail to assure the BSR that your overall project will, on completion, comply with all relevant requirements. Thus, if you are applying for approval in relation to the HRB’s foundations and sub-structure, you must also provide the BSR with sufficient information about its superstructure. Assessing the suitability of the former depends heavily on understanding the specifics of the latter.


During construction

You may start enabling works (e.g., site set-up, demolition works, stripping out, excavation of trial holes) without building control approval from BSR. 

However, you must have that approval and give BSR five days’ notice before you start any permanent construction work. 

You must ensure that your project team:

  • completes work in accordance with your plans and the conditions of the approval. Documents related to managing and monitoring the project submitted in your application to BSR must be kept up-to-date and accurate
  • reports qualifying safety occurrences using your mandatory occurrence reporting system
  • records ‘controlled’ changes in your change control log. This means changes that involve carrying out construction work other than as set out in the current plans, and/or departing from the strategies, policies and procedures described in current documents.

You must tell BSR about two types of controlled changes:

  1. Major changes, i.e., ones that undermine the basis upon which building control approval was granted. You must not allow your project team to implement a major change until you have applied to the BSR and secured their approval for it. The default timescale for BSR to respond is six weeks. However, they may take longer, if necessary, in which case they must agree a new deadline with you in writing.
  2. Notifiable changes, i.e., ones that affect compliance with relevant requirements in the building regulations. You must notify BSR first but otherwise do not have to wait for their approval before making the change.

Note: BSR has the power to reclassify changes and so you cannot completely rely on your own team’s assessments. This introduces some unwelcome jeopardy, emphasising how important it is to avoid changes on site as far as reasonably practicable and, if a change is unavoidable, to err on the side of caution when assessing its impact.


At Gateway Three

Occupants cannot move into a newly built HRB until they have secured a completion certificate. 

Once the work is complete and before you apply for the certificate, you must first:

  1. secure statements from the dutyholders on your project team that the work satisfies the functional requirements of the Building Regulations 2010.
  2. send copies of all the relevant information to the relevant person (e.g., the Accountable Person), who must confirm in writing to you not only that they have received and can read copies of all the information, but that it is sufficient to allow them to understand, operate and maintain the HRB and its systems.

Your application must demonstrate that you built the HRB according to the approved design and that it meets all relevant requirements.

As well as the statements from your dutyholders and the person you are handing over to, the package of information, which must be stored in the golden thread of information, must include:

  • information about the HRB, including ‘as built’ plans and drawings;
  • final versions of all documents that featured in the initial application;
  • the final version of the change control log;
  • information captured during construction;
  • information captured during commissioning;
  • information captured during final functional inspections;

Armed with your application, BSR will conduct final inspections.

If satisfied, they will approve your application in writing and issue a completion certificate. The regulations make a point of emphasising that the approval is not conclusive evidence of compliance, which of course means that, while helpful, it does not fully limit your liability for work subsequently found not to comply.

If BSR is not satisfied, they will reject your application outright in writing with reasons. 

It is too soon to say how the BSR will treat unsatisfactory applications but there is clearly a risk that the whole project will stall for some considerable time on top of the statutory eight weeks. Once again, since delays are likely to be extremely unwelcome, this risk emphasises the good sense in investing time and resources in getting your application right first time.


Enforcement powers

BSR have powers of enforcement commensurate with the risks they want you to avoid. For example, it is a criminal offence to:

  • provide false or misleading information to BSR, with penalties that include unlimited fines and up to two years’ imprisonment
  • contravene the Building Regulations 2010, with penalties that include unlimited fines and up to two years’ imprisonment
  • fail to comply with compliance and stop notices, with penalties that include halting work until you rectify the offending work and forcibly removing contravening work and charging the cost to you.


Additional or alternative client duties 

Working on HRBs means that you have additional duties as the client on top of the ones set out in part one of our blog in this series. 

You must make suitable arrangements to ensure that:

  • designers and contractors know the project is for an HRB
  • you furnish them with information about the nature of the HRB work. 

These arrangements must include periodic reviews of the project’s HRB status and the nature of the HRB work. Information about any changes must be passed on to all contractors and designers (including the principal dutyholders) on the project.

Overall implications for clients

The new regime radically increases the amount of regulatory oversight of compliance before your start construction work, during the building phase, and on completion. 

This has significant benefits. The increased oversight stops you from rushing in before you have fully considered your construction plans, improving your chances of avoiding risks to safety. This has other theoretical advantages: working things out properly up front and avoiding late changes tends to keep overall costs and delays to a minimum, and helps to mitigate risks in relation to your long-term liability.

On the downside, the new regime looks likely to add significant amounts of extra time to any project schedule and could disrupt received wisdom about procurement routes. For example, the need to resolve the design fully before starting on site could make design and build options less attractive. 

The new regime also adds extra jeopardy insofar as the BSR has considerable enforcement powers that could delay or stop you starting on site and allowing occupation. 

Overall, the durations of BSR’s approval processes and the risks that they might stop you in your tracks highlights the importance of investing time up front to make those plans as comprehensive, well-organised, and fixed as possible before the initial application and to maintain them for the duration.

Since the new regime simply fixes the problems of the old regime, you could argue that we should have been doing things this way all along. Whether or not you agree, we owe it to the victims of the Grenfell Tower fire to try.

For more detail on the new regime, read DLUHC and Health and Safety Executive guidance.