April 2024 Building Safety Update

6 April 2024 saw the end of the transitional period for the new building regulations relating to Dutyholders and building control processes; as well as the start of a new era in regulation of the building control profession. We round up recent developments in the building safety arena below.

New regime for design and construction of buildings – state of play

End of the transitional provision period

It has now been just over 6 months since the various new rules applying to the design and construction of building works in England came into force on 1 October 2023, and the transitional period applying to works that already had an initial notice or plans deposit accepted as at 1 October has now come to an end.

Such “in-train” projects that did not manage meet the applicable remaining transitional provision criteria in time before 6 April 2024 must now take varying steps, depending upon the type of work involved:

• “Higher-risk” building work must transfer to the Building Safety Regulator and a new application for building control approval will need to be made to the Regulator (in accordance with the relevant transfer requirements in the regulations), and from 6 April 2024 the new “dutyholders’ regulations” in Part 2A Building Regulations 2010 will apply to the project;
• All other building work that had a notice or plans deposit accepted before 1 October 2023 but where work was not “started” before 6 April 2024 will now also be subject to the dutyholders’ regulations, and to certain other new changes to the building control processes applicable to non-higher- risk building work.

New regulation of the building control profession

From 6 April 2024, private building control services are provided by Registered Building Control Approvers (RBCAs), not Approved Inspectors. There are significant consequences if an in-train project has an Approved Inspector appointed which did not convert over to an RBCA in time. In that event:

• Any higher-risk” building work projects on which the AI was appointed must transfer to the Building Safety Regulator and new building control applications to the BSR must be made, in accordance with the relevant transfer requirements in the regulations.
• For any non-higher-risk building work projects where an initial notice was given before 6 April 2024, the AI can continue to provide the building control function for up to 6 months, but if the work has not been completed and had a final certificate issued before 1 October 2024, then from that date the existing initial notice will automatically lapse and a new building control application will need to be made to an RBCA or local authority.

How are the new processes working in practice?

A recent article in Construction News suggests that the industry is struggling to come to terms with the new building control processes brought in in October, reporting on comments from the Health & Safety Executive (which runs the BSR function) that the majority of building control applications received are being rejected at the initial stage because they fail to comply with the new documentation requirements.

This is a reminder that, particularly for higher-risk building work projects, the new rules make extensive and radical changes, and require a significant amount of work to be done up front by all in the project team to compile a compliant building control application. Applicants therefore should pay careful attention to the new requirements in order to get their application right the first time and avoid further delays.

The Government have also recently published further guidance / Q&A on the new processes, which may be of interest.

Finally, the CIC has issued a comment on the new competency assessment process for appointments under new Reg 11E of the Building Regulations 2010, noting that:

• The “Construction Skills Certification Scheme” (CSCS) card relates to construction-related tasks and does not provide evidence of competence to act as a designer or Principal Designer;
• Possession of a CSCS card is not required by the regulations, and in CIC’s view “evidence that anyone appointed to carry out building or design work is competent would be expected to include evidence of relevant qualifications, professional registration with an appropriate body such as the Architects Registration Board (ARB), Engineering Council, or relevant professional body, evidence of completion of a suitable health and safety test such as the CIC or RIBA health and safety test or evidence of experience relevant to the current appointment. Competence is project specific”
• The Construction Leadership Council (CLC) has stated that designers and Principal Designers do not need a CSCS card to access a construction site (although some main contractors have deviated from CLC recommendations and indicated that anyone entering their sites must hold a CSCS card).

Recent cases on Defective Premises Act 1972

A decision (Vainker v Marbank Construction Ltd & Ors) has been released which may interest those of you following claims under s.1 Defective Premises Act 1972 (DPA) (and also in relation to duties under contract and tort regarding allegations of defective design and workmanship). Claims under s.1 DPA have become far more relevant since the Building Safety Act 2022 introduced a retrospective 30 year extension to the limitation period for bringing such claims; and also created the new concept of a “Building Liability Order”, under which it is possible for a Court to pierce the corporate veil and order that an entity’s liability under the DPA is deemed to be that of its “associated entities” (such as parent companies) if it considers it is just and equitable to do so.

The new decision relates various non-fire safety related defects in a detached residential home owned by individuals and built in 2014 (rather than the blocks of flats that are often the subject of fire-safety related defects and which have been a focus since the Grenfell tragedy) but the principles considered by the Court are still a useful reminder of the issues that can arise in a s1 DPA context.

In another DPA-related case, the Supreme Court has granted permission for an appeal to it of the important URS Corporation Ltd v BDW Trading Ltd decision (which relates to matters including duties owed to developers under s1 DPA and the interpretation of the BSA’s retrospective extension of the limitation period for s 1 DPA claims)). The Supreme Court appeal is due to be heard in early December 2024.