The new regulatory regime as set out in the Building Safety Act came into force in England in October and will apply to all projects subject to building regulations apart from some excluded minor works. But how does it apply to the devolved nations? Andrew Leslie, head of membership at the APS, explains.
The Grenfell tragedy and the resultant analysis of the self-evident failings in the design and construction sectors, along with a flawed building control system (in England), have spawned a plethora of regulation. This is aimed primarily at competence of all participants contributing to the built environment in England (and Wales) and assurances that designs and constructions are safe to build, occupy, maintain and demolish (recycle, hopefully).
Reforms across all parts of the industry jigsaw mean that building regulations in England have been significantly strengthened, not least by the introduction of dutyholders that mirror those in the Construction, (Design and Management) Regulations 2015 (CDM 2015).
Fire regulations have been beefed up, and building control significantly tweaked by the introduction of the Building Safety Regulator (part of the HSE) for higher-risk buildings (HRBs) and competency training for building control inspectors so that they will now become a registered building control approver.
Let’s hope that the jigsaw has no missing pieces. Full details of all of this can be found on the APS website in our webinar series and briefing notes. Visit www.aps.org.uk/category/webinars.
All of the above has been authored and implemented in the full knowledge that the four countries comprising the United Kingdom have separate jurisdictions dealing with building regulation and fire safety.
This is a missed opportunity to say the least. Even more galling is that Dame Judith Hackitt actually pointed to the Scottish building control system as being superior in the sense that the compliance checks of the proposed design by building control occurred early in the design process and resulted in a warrant to permit construction of the design.
Dame Judith said that the new regulatory framework must be simpler and more effective. Well, in this writer’s eyes, it is most definitely not. The Building Safety Act (BSA) is hugely complex and there is no official guidance. Still, this article is about the effect that the BSA has on the devolved administrations, something that has not been discussed by the UK government or its agencies.
Legislation in force
The BSA came into force on 28 April 2022. It makes provision for the safety of people in or about buildings and the technical standard of buildings. The Act predominantly applies to England and Wales, with limited application in Scotland and Northern Ireland (NI).
It is in full effect under English law. The bits that concern the other three countries are also in full effect. All secondary legislation associated with the BSA and construction has been published and came into effect on 1 October 2023, but is subject to transitional provisions.
The Welsh government’s white paper Safer Buildings in Wales sets out proposals for a comprehensive reform of building safety legislation and how it will apply to the principality. The Act allows the Welsh government to implement a slightly different regime from that envisaged in England and it published the results of its consultation on building safety for higher-risk buildings in September 2023.
The Welsh regulations will now be finalised, with some amendments to the proposals in the consultations being made for clarity/to ensure the policy is fully implemented.
The proposals are likely to be laid in the Senedd in autumn 2024, following the affirmative procedure. The general feeling is that consistency has been achieved in the most part between the English and Welsh proposals. The only key difference being the increase of scope in Wales where it has been decided to define an HRB as having one residential unit rather than two (as is the case in England) in the description.
Not much of the BSA applies to Scotland. Scotland has its own building regulation and fire safety regimes in place and will not adopt the new BSA dutyholders. Instead, the Scottish Building Standards Division is proposing the introduction of a Building Standards Compliance Plan and a new dutyholder, the compliance plan manager, who will monitor compliance through both the design and construction stages.
This scheme, which is still being scoped by a working group, is likely to be rolled out in 2025/6. Scotland has, since 2017, been introducing improvements to the Scottish building standards and fire regulations.
The situation in Northern Ireland is less clear, as Stormont is at the time of writing in limbo. NI has its own building regulation and fire safety regimes and it is anticipated that it will follow the Scottish model.
How the Building Safety Act breaks down
The Act has six parts:
- The Building Safety Regulator and its functions.
- The Building Act 1984.
- Higher-risk buildings.
- Other provisions about safety, standards etc.
There are also 11 schedules.
Part 1: Introduction This applies to the whole of the UK. But, as this part is an overview of the Act, it applies only in part and “where it touches”.
Part 2: The regulator Only Section 2 applies to Scotland and Wales, only in as much as it mentions that the Health and Safety at Work Act, which applies in both jurisdictions, is amended by the BSA. Section 2 does not apply to NI. The remaining sections regarding the regulator apply in England only.
Part 3: The Building Act 1984 This does not apply in Scotland or NI. Some parts apply in Wales, but, for example, provisions relating to dutyholders and general duties, competence, lapse of building control approval, compliance and stop notices, breach of regulations and liability of officers of body corporate do not. This is presumably to be dealt with by the Senedd in due course.
Part 4: Higher-risk buildings This does not apply to Scotland, Wales or NI.
Part 5: Other provisions Some sections do not apply to Scotland, Wales or NI, except:
- Part 5 Sections 130-135 apply in Wales.
- The New Homes Ombudsman Scheme applies in all four jurisdictions.
- Sections relating to construction products and liabilities apply to Scotland and Wales unless relating to the other jurisdictions, but do not apply at all to NI.
- However, the sections on ‘construction products: costs contribution orders’ apply everywhere.
- The sections concerning architects also apply throughout the UK.
- The section on housing complaints does not apply in Scotland, Wales or NI.
Part 6: General Most sections apply in the UK, except sections on (English) crown provision, application to parliament and where the section on the power of Welsh ministers applies to Wales only (also not to England).
Of the 11 schedules, three apply to all four jurisdictions and three apply to England and Wales only. The remaining five apply only to England. The schedules amplify what is said in Parts 1-6.
To repeat Dame Judith Hackitt’s objective: the new regulatory framework must be simpler and more effective. Answers on a postcard?
It might be helpful to visit the APS Building Safety Act Session 8 webinar where graphics aid the understanding of this overcomplex and confusing piece of legislation: www.aps.org.uk/product/building-safety-act-session-8.
Implementation of the new building safety regime at a glance
- Very few provisions in the BSA apply in Scotland and NI.
- A greater number of provisions apply in Wales.
- The regulator does not have oversight of the building control sector in Scotland, Wales or NI. This situation may change in respect of Wales.
- The Defective Premises Act 1972 (DPA), (ref BSA, Sections 130-134), does not apply in Scotland or NI.
The DPA applies to those providing a dwelling in England and Wales, whose duty is that they must ensure that they carry this out in a workmanlike and professional manner, with proper materials to ensure that it will be fit for habitation when completed.
The limitation period has been extended significantly from six years from the completion date to 30 or 15 years retrospectively depending on when the claim is made.
The amended DPA is now extended to include refurbishment works and remedial works although this amendment only applies prospectively. The limitation periods in relation to liability relating to construction products increase in all jurisdictions.
- The New Homes Ombudsman Scheme applies in Scotland, Wales and NI. Part 5 Sections 136-143 cover housing developers of new homes and their owners who wish to make a complaint.
- Construction products regulations apply in all UK jurisdictions, with some sections of the Act not applying in NI. Part 5 Section 146 refers to Schedule 11 which introduces new regulations relating to construction products – covering safety, fitness for purpose, enforcement and procedural matters.
- Changes to the Health and Safety at Work Act (HASAWA) are specified in Part 2 of the BSA and refer to Schedule 1. This applies in Scotland and Wales, only to the extent that a few words change in Section 11, subsections 5 and 6 of the HASAWA. This part and the schedule do not apply in NI.
- Changes to the Architects Act 1997 apply in Scotland, Wales and NI. Part 5 Sections 157-159 of the BSA amends the Architects Act and covers discipline and CPD, procedural aspects and fees due to the Architects Registration Board for its services.