School of Specification The Building Safety Act – ADC

Can you give a brief summary of the implicationsof the Building Safety Act on the role of the architect?

The Building Safety Act (BSA) introduces the most significant changes in the law around buildings and their regulation for a generation. There is a new regulator, new processes, new duties, new duty-holders, and new sanctions. Changes particularly relevant to architects include:

Duty-holders and competence

One of the purposes of the BSA is to ensure accountability. It seeks to achieve this by placing duties on certain roles, including Principal Designers and other designers.These roles are modelled on the CDM Regulations, so most architects will be familiar with their nature and may be well set up to carry them out.Now, there is an even stronger focus on being competent to perform the roles, working only within the limits of competence and being able to demonstrate competence. Architects will need to work harder to ensure they have the right level of competence for their role on a project and to prove it. This may involve identifying areas of weakness, upskilling through training, and ensuring records of qualifications, experience and training are maintained.

Processes and procedures

New processes are being introduced governing the progress of a development from design to occupation. For example, a gateway system for high-risk building developments which will operate to prevent developments proceeding unless or until the gateways are cleared. Architects will need to know how this works and what they need to do to ensure the developments they support can go ahead.

Architects will also need to ensure the relevant documentation about the design of the building, and any changes, is captured within the new ‘golden thread’ of information. This is an electronic record of key building information, which will be available to future building occupiers and managers.

Tougher duties and sanctions for breach

Sitting behind the BSA is the idea that the polluter should pay. Consequently, the BSA establishes:

1. New duties to ensure safety in the design and construction of buildings. For example, the duty upon those taking on work in relation to a dwelling to ensure it is fit for habitation under the Defective Premises Act 1972, now applies to refurbishment projects as well as new builds. Limitation periods for claims have been extended, so not only is there a higher likelihood of a claim, but the risk runs for longer.

2. Criminal liability, enforced with fines and imprisonment for regulatory breaches. For example, breaches of building regulations will amount to a criminal offence. Similarly, failures to comply with any compliance or prohibition notice issued in relation to the design or construction of a high-risk building will also be a criminal offence. Individuals, as well as corporate entities, can be penalised.

How far would you say these implications are generally understood?

The BSA has been with us for a year now, so most architects will have a general idea about its key features and likely implications. However, the detail around how the new regulatory processes and procedures would work was left to secondary legislation.

Much of this regulation, for example covering the gateways and the golden thread, was not published until 17 August 2023, ready for implementation this October. Everyone is trying to get up to speed with that now.

If existing high-risk buildings are not registered by October 2023, and until any new ones are registered, they cannot be occupied All those involved in the developments need to be alive to the rules and how to comply with them, or they will be caught out and sanctions will follow”

What are the 2023 updates? And how can architects get ready for the new regime?

The regulations relevant to Architects, published on 17 August 2023 and coming into force on 1 October 2023, are briefly summarised below. These give effect to the provisions of the BSA, so their implications mirror those already discussed. To get ready for the new regime, architects should consider the following:

1. Taking steps to ensure they are on top of the new processes and procedures. The resources provided below might help.

2. Updating their own policies and processes to ensure they comply with their obligations under the BSA, as duty-holders and more generally.

3. Auditing the competency of their practice and staff to identify the limits of their competence, areas for further development, and evidence of competence in relevant areas to their practice.

4. Factoring in sufficient time to comply with the new regime and procedures, and advising clients and contractors accordingly so this can be accommodated in the programme.

5. Ensuring that their insurance cover extends to the new risks.

6. Updating terms of business and/or rates to reflect the new risk.

7. Remembering that while there is a lot to take in and adapt to, the overriding purpose of the BSA is safety and striving to obtain high standards can only be of benefit to everyone.

The Act creates new criminal offences for regulatory breaches, which will result in fines or imprisonment for individuals”

Regulations coming into force on 1 October 2023

• The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. Here lies the detail around the new regime for high-risk buildings, including the gateways, managing changes before and during construction, mandatory occurrence reporting, inspections and completion, and the golden thread, as well as transitional arrangements for the period from October 2023 to April 2024.

• The Building Regulations etc. (Amendment) (England). Regulations 2023 update the regulations to include the new duty-holder regime and competency requirements. 

• The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations Approved inspectors will now be replaced by registered building control approvers. On high-risk buildings in England, the Building Safety Regulator will be the only building control authority.

Do you have any cautionary tales about the risks of not getting up to speed with the new regulatory landscape?

The BSA certainly sets the scene for scary stories. For example:

• It creates new criminal offences for regulatory breaches, which will result in fines or imprisonment for individuals. 

• On the commercial front, if high-risk buildings do not clear the new gateways at the planning stage, immediately before construction starts and at completion, the development will not be allowed to proceed leading to delays and spiralling costs. 

• If existing high-risk buildings are not registered by October 2023, and until any new ones are registered, they cannot be occupied. All those involved in the developments need to be alive to the rules and how to comply with them, or they will be caught out and sanctions will follow. 

What’s the best way for small practices and sole practitioners, who may have the expertise in-house, to acquire the knowledge and skills they need?

Building safety is such a hot topic that there are many good sources of information out there. The series of presentations prepared by Fenwick Elliott specifically for AT is a good starting point. We also have some webinars available here: www.fenwickelliott.com/research-insight/webinars which provide a good introduction to the issues with a future webinar planned on the latest regulations.