The Health and Safety Executive (HSE) describes the creation of the Building Safety Regulator (BSR) as being at the heart of the building safety reforms. The Building Safety Bill proposes a stringent regime for higher-risk buildings called a "gateway" regime with 3 points or "gateways" during the design and construction process and given that the BSR's role involves implementing this regulatory regime with new powers to prosecute all offences under the Building Safety Bill, it may be seen as the gatekeeper. The BSR will operate as a division of the HSE.
The BSR will regulate high-rise buildings, described by HSE as buildings with 7 or more storeys or that are 18 metres or higher and either have at least 2 residential units or are hospitals or care homes.
In this note, we are going to give a flavour of the BSR's role in gateways two and three of the gateway regime (gateway one is the "planning gateway") and in registration and certification. We will be covering the impact of the Building Safety Bill on Building Control and Building Regulations in a future article.
What is the Building Safety Regulator's role in the gateways?
Gateway two occurs before construction. Construction cannot begin until the BSR is satisfied that the design meets the functional requirements of Building Regulations and contains realistic safety management. This is also the point at which the Building Safety Levy has to be paid and for more information on this levy, please follow the link to our article on the Building Safety Levy and the Building Safety Charge:
https://realestate.howardkennedy.com/post/102hger/building-blocks-the-building-safety-bill-the-building-safety-levy-and-the-buil
Gateway two will replace the building control deposit of plans stage before building work starts for higher-risk buildings.
Gateway three occurs at the completion of the building work. The BSR must be provided with all prescribed documents and information on the final as-built building and once it is satisfied that the building work complies with Building Regulations and provides assurance of building safety, the BSR will issue a building control completion certificate and register the building on its system. The key point for developers, investors and lenders is that the building cannot be occupied until it is registered.
So it is important to know that the BSR is involved with 2 aspects to the occupation phase of a new building: registration and certification.
What is the Building Safety Regulator's role in the occupation phase?
Registration: All occupied high rise residential buildings will have to be registered with the BSR and there will be a national register, publicly available, of high-rise residential buildings. Existing occupied buildings will also have to be registered but here there will be a transitional period for doing this of around 6 months.
Certification: After registration, the Accountable Person for a high-rise residential building will have to apply for a Building Assessment Certificate.
The BSR will issue a request for a Building Assessment Certificate via a call-in notification within a period which the Building Safety Bill says is "a defined period following occupation" in accordance with a strategic plan which the BSR will publish and then follow.
Once requested to do so by the BSR (likely by email), the Accountable Person must apply for a Building Assessment Certificate. They will have 28 days to send their documents to the BSR.
The Building Assessment Certificate is not a pre-condition for occupation of the new building but still, there is an obligation to apply for it once requested by BSR.
It is the BSR that issues the Building Assessment Certificate which it will do if satisfied that the Accountable Person is complying with its statutory obligations such as appointing and informing the BSR of the Building Safety Manager and compiling the Safety Case Report which assesses building safety risks and shows the reasonable steps being taken to prevent and control the impact of a major incident resulting from the identified building safety risks. The Safety Case Report demonstrates that the building is safe for occupation and it is submitted to the BSR when applying for the Building Assessment Certificate.
New buildings will be called to apply for their Building Assessment Certificate within 6 months of occupation. There are over 12,500 existing occupied high-rise residential buildings in England and it will take the BSR around 5 years to assess them all for the first time. Every high-rise residential building will be reassessed at least every 5 years.
Which are the key new requirements to prepare for?
It is important that developers and investors and their lenders in high-rise residential buildings in England are aware of the Building Safety Bill future requirement for new developments to be registered as a pre-requisite for occupation and for the call-in for application for the Building Assessment Certificate which in turn engages the preparation of the Safety Case Report. These new requirements will have to form part of property due diligence and contractual terms for development, acquisition and lending on high rise residential buildings in England.
This blog is part of a series published by Howard Kennedy LLP on the Building Safety Bill. For more information please contact Sharon Stark or Stuart Duffy. For other blogs on the Bill, please click here
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