09 October 2023
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The enactment of the Building Safety Act 2022 (BSA) is one of the most fundamental changes to construction in decades. This article is the second in a series looking at what the new regime means for specifiers and manufacturers. The first article gave an overview of the new regime; this second article focuses on higher-risk buildings.

Introduction

The new building control regime for higher-risk buildings (HRBs) introduces new processes that all members of the design and construction team will have to follow. Whilst the primary legislation is the Building Safety Act 2022 (BSA), there are numerous other statutory instruments, guidance and standards that support the regime. This article is intended as guidance for specifiers and manufacturers; it is not an exhaustive review of what should and should not be done.

The client must consider the whole process before initiating the project. Together with the principal designer, they must consider how the scheme will be built, how changes during the process will be managed and how the building will be occupied and managed during its operation. A building control approval application must be made to the Building Safety Regulator (BSR) to obtain approval before any building work commences. Together with the principal contractor, the client and principal designer must ensure that the work is suitably completed to meet the functional requirements of the Building Regulations and maintain a change control process during the construction phase. At the end of that phase, the client must submit information to demonstrate how the team has complied with the functional requirements, with evidence to demonstrate this.  A residential building, or part of a residential building, cannot be occupied until the BSR issues a completion certificate and the residential building is registered with them.

There are five main stages:

  1. Project initiation. The client will be responsible for initiating the project. This will include ensuring that all of those involved are competent to fulfil their roles. In particular, the client will have to appoint a principal designer, with the principal contractor appointed at a later date (but as early as possible). As part of the process to ensure that the legal duties have been fulfilled, all the duty holders will have to demonstrate: that the regulations have been met; how the building has been designed and built; and how the building will be managed.
  2. Gateway one. This is the planning application stage. In addition to previous planning matters, this gateway includes the submission of fire safety information. This stage is not covered in detail in this article.
  3. Gateway two. For all higher-risk buildings, a full application must be submitted and approved before work can commence. This includes the provision of additional information on competence, fire safety, control measures and mandatory reporting.
  4. Gateway three. This is the stage where an application for a completion certificate is made. In order to receive the completion certificate, the client must demonstrate that the building has been built to the approved plans. The building cannot be occupied until a completion certificate has been issued.
  5. Ongoing management. The new regime also focuses on the ongoing maintenance and management of higher-risk buildings. The accountable person is responsible for ensuring that the building is maintained in a safe manner, as well as for keeping and sharing relevant information with residents, the regulator and the 'responsible person' (where the accountable person is not also the responsible person). More information can be found in the Government’s Safety in high-rise residential buildings: Accountable persons guidance.

Introduction to the gateway two and three process

The new regulatory regime has a much wider scope than the previous application process. This is to ensure that the duty holders are able to demonstrate that they are competent to carry out the works, that they meet the functional requirements and have adequate management and change control processes for the construction phase and that they have realistic assumptions about how the building will be occupied and managed.

Once again, it is worth noting that the duty holders must now demonstrate ‘how’ the design and management strategies meet the regulations, as opposed to simply ‘that’ they do. Within the HSE guidance Overview of the new building control regime, it is stated that: ‘If any standard or document is cited in support of the application, then the applicant will need to articulate how the standard allows the functional requirement to be achieved for that building application’. Clearly, applications for HRBs will be more than a set of plans and specifications.

Accompanying documents

The Building Regulations 2010 and amendments in The Building Regulations etc. (Amendment) (England) Regulations 2023 require the submission of ‘full plans’. This is usually deemed to include both plans and the specification, as well as other schedules to describe the building works. The new requirements of duty holders include the need to coordinate their designs, with the principal designer responsible for carrying out this activity. Whilst this places a new duty on the principal designer, in effect it simply codifies what should already have been good practice. The RIBA Plan of Work and its numerous overlays will be helpful in that regard with the use of a design responsibility matrix.

Under the new regime, an application for an HRB will also need to be accompanied by several other documents that are relevant to the proposed scheme. The list of potential accompanying documents includes the following:

  • A competence declaration. The declaration from the client is to confirm that the principal designer, principal contractor and any other persons or organizations are competent to carry out their roles.
  • A Building Regulations compliance statement. A significant new requirement, this document must show how each Building Regulations requirement will be achieved, including references to external sources and/ or solutions to compliance.
  • A fire and emergency file. Defining the strategy for managing building safety risks post-completion, including the assumptions used.
  • A construction control plan. Defining the strategies for managing construction to ensure compliance with the regulations. This also includes monitoring the building work, as well as the ongoing competencies of those involved.
  • A change control plan. Description of the change control processes that will be adopted once approval is given.
  • A mandatory occurrence reporting plan. A new requirement to report issues that are discovered during the design and construction phases. This includes issues around competence, products and defective building work.
  • A partial completion strategy. This involves the applicant proposing occupation of part of the building before completion of the HRB work. Only relevant where the scheme will be delivered in phases. If partial completion strategies are not outlined in the application at gateway two, it would be classed as an application for a 'major' change down the line.

More guidance on these documents can be found in both the Government’s Managing building control approval applications for higher-risk buildings and the HSE guidance Overview of the new building control regime.

As noted in The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, the regulator will reject the application if ‘…the application or any document that accompanied the application…shows the strategies, policies or procedures in relation to the HRB work or the stage of HRB work (including in relation to controlled changes, mandatory occurrence reporting, competence of persons or sharing of information and co-operation) would contravene, or would be likely to contravene, the requirements of [the regulations]’. The statutory review period for gateway two is 12 weeks (or eight weeks for a refurbishment project). The industry has been advised that providing clear information on design and occupation strategies, as well as coordinated plans, specifications and schedules, will improve the decision-making process for the new regulator.

Contractor, subcontractor and manufacturer design

In several procurement routes (including JCT contractor design portions (CDPs), as well as design and build), the detail design of some systems is left to the contractor and/ or specialist subcontractor. In some circumstances, this may also fall to the system or product supplier.

The requirements of the new regime for HRBs require all of the design to be completed prior to approval. Regulation 7(1)(b) of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 states that the regulator may reject the scheme if it ‘is not sufficiently detailed in any respect to allow the regulator to determine whether the HRB work or the stage of HRB work would contravene any applicable requirement of the building regulations’.

This could have a significant impact on procurement routes that rely on further design by specialists during the construction phase. This could be in several ways:

  • The principal designer is responsible for coordinating and monitoring the scheme design across all designers. For HRBs, this will include those designers that might previously have detailed a design to meet a functional or performance specification.
  • This detailed design work will presumably need to be brought forward, potentially impacting the time required to finalize design, where previously it would have been carried out in parallel to the construction phase.
  • Specialist designers, subcontractors and/ or manufacturers could be classified as ‘designers’ with associated duties. These include competencies, ensuring the availability of resources and timescales, and coordinating and collaborating with the client and other duty holders.

The scope and timing of design work under both the JCT CDP and design and build routes will change. Whether these procurement routes can be adapted to meet the new requirements remains to be seen. Similarly, it could be argued that the role of the principal designer has been extended to cover a wider coordination of design work. Whether additional fees can be sought and whether suitable insurance can be provided will also be keenly watched. It is recommended that principal designers liaise with insurers regarding their professional indemnity (PI) cover to ensure that their new responsibilities and risks are covered.

Is this the end of design and build/ contractor design in HRBs?

This is a question that many are posing at the moment. The simple answer is that no-one really knows, and only time will tell how the regulator will respond to performance-based designs for systems, with detail provided in later ‘major changes’ (see below). Earlier appointment of the principal contractor and specialist subcontractors may alleviate this issue, remembering of course that they may also be considered as ‘designers’ and have the duties of that role also applied. What we can say is that the application of design and build for HRBs will change.

Then there is the question of when specialist subcontractor design will take place. Will the regulator accept performance-based designs with detailed design to be completed at a later date? As noted previously, Regulation 7(1)(b) of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 states that the regulator may reject the scheme if it ‘is not sufficiently detailed in any respect to allow the regulator to determine whether the HRB work or the stage of HRB work would contravene any applicable requirement of the building regulations’. The pertinent word is ‘sufficient’, although the HSE guidance Overview of the new building control regime does indicate that their views will be ‘proportionate’ and that ‘…there will be some overlap between design and construction’. Should they accept later detail, then there will be a change requirement and a regulator review with associated risk, time and cost implications. As future projects navigate the new regime, we will understand more about the options available for specialist design input.

Construction phase – change control

Perhaps one of the biggest changes is the introduction of the change control process. Whilst many organizations will already have a change process in place, the new requirements are prescriptive in terms of the types of change and the information that must be recorded. The Building Safety Act requires that the client be responsible for ensuring that any changes to the approved design at gateway two are included in a change log. Should any change be required to the approved designs, then the client, principal designer and principal contractor need to decide whether the changes are recordable (being relatively minor and just needing recording), notifiable, or major.

The types of changes are broadly categorized as follows:

  • A major change is one that has a significant impact on the design or fire strategy of the HRB and would significantly alter or undermine the basis on which the original approval was based. Such changes will require the approval of the Building Safety Regulator through a change control application. These applications will be subject to a fee and will take up to six weeks to be determined. No work can take place on any area subject to a major change until the regulator has approved that change.
  • A notifiable change is one that will have an effect on the design or compliance. Once the regulator has been informed, notifiable changes can be started on site.
  • A recordable change is a minor change that does not need to be raised with the Building Safety Regulator. Should be included in the controlled change log.

The HSE guidance Overview of the new building control regime provides examples of the different types of changes. They include (but are not limited to):

Major changes:

  • Design changes to fire escape corridors, staircases, etc.
  • Changes to the structural design or structural loading of the building.
  • A change to the external wall of a proposed higher-risk building, including a wall tie, wall restraint fixing or support system in the wall.
  • A change to any part of the active fire safety measures or passive fire safety measures in a proposed higher-risk building referred to in the fire and emergency file.

Notifiable changes:

  • Changes to the construction control plan and the change control plan.
  • A change to the wall tie, wall restraint fixing or support system in any wall or proposed wall (excluding an external wall).
  • Subject to paragraph (2), a change of any construction product or building element to be used in or on a proposed higher-risk building (or to be used as part of works to a higher-risk building) where its replacement is of the same or higher classification under the reaction to fire classification (within the meaning in regulation 2(6) of the 2010 Regulations).

Whilst it is the responsibility of the client, principal designer and principal contractor to determine the type of change, the HSE guidance Overview of the new building control regime states that the regulator ‘…will have the power to change the category of any change where they think it is appropriate to do so’. This means that where the design/ construction team has issued notice of a notifiable change and then commenced work, the regulator may determine that it is a major change and stop the work taking place, leading to a delay.

More detail on those areas that are identified as being major or notifiable changes can be found in the HSE guidance Overview of the new building control regime.

Controlled change log

Where changes take place from the approved scheme, such changes should be included in a controlled change log. Many organizations will already include change processes within their existing procedures and as such, the new controlled change log will not be overly arduous to implement. However, the controlled change log within the BSA includes specific data capture requirements, including the name of the individual recording the change, a description of the proposed change and the reason why the change has been proposed. It will also require an explanation of how the HRB work (or work to an existing HRB) will, after the proposed change is carried out, comply with all applicable Building Regulations. The log must also identify whether the change is a recordable, notifiable or major change.

The log should also include an assessment of which agreed document(s) are affected by the proposed change and confirmation that a revised version of the document(s) has been produced. Information will also be required on those involved in the change, including the name and occupation of each person, if any, whose advice was sought in relation to the proposed change, as well as a brief summary of any advice provided.

Product substitutions and ‘spec busting’

Another area where change will take place is in the area of product substitutions. Typically, during the construction phase, changes to products may take place due to cost or supply issues. The new regulatory regime sees this as an area where more control is required. Regulation 26(2) of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 states that: ‘Where an agreed document specifies use of a construction product or building element falling within a specified class, the change to another product or element falling within the same design specification is a recordable change’. This makes it clear that if the product is ‘within the same design specification’, then it can be substituted and recorded within the controlled change log. Debate will clearly take place over the term ‘same design specification’. However, what is clear is that such changes will need to be recorded as part of the controlled change log. In a survey carried out as part of the Code for Construction Product Information (CCPI) project with the Construction Products Association (CPA), NBS found that only one-third of respondents said that, where products were substituted, this was always done with approval. This new requirement will remove the issue of unauthorized substitution and will provide manufacturers whose products have been specified with more certainty.

The ‘golden thread’

A key feature of the revised regime is the introduction of the ‘golden thread’ of information. This ‘golden thread’ is designed to be the core record-keeping process for the design, construction and operation of the building. The Building Safety Act and its secondary legislation (The Higher-Risk Buildings (Key Building Information etc.) Regulations 2023) requires duty holders and accountable persons to gather and provide the information to the regulator. However, the legislation does not prescribe the format, only that ‘[t]he key building information to be provided to the regulator must be in electronic form’ and that this information must be submitted within 28 days of applying for registration.

The client is ultimately responsible for the provision, development and maintenance of the ‘golden thread’ of information. However, at different stages of the project, the client may seek to engage different parties to manage the thread during different stages. For example, during the design stage, it is likely that the principal designer will be the lead.

The client principal, designer and principal contractor will have a shared duty to plan, manage and monitor the work as the design and construction progresses. They will collaborate with the principal contractor to ensure that, during the construction phase, any changes to the approved designs will be captured within the ‘golden thread’. All of this should be captured within the controlled change log.

Once the building is complete, the ‘golden thread’ of information will form part of the evidence to demonstrate that the building has been constructed in line with the approved designs and the regulatory requirements.

Whilst the regulations and the HSE guidance Storing your building's information – the golden thread merely state that the ‘golden thread’ should be held in ‘electronic form’ and ‘kept digitally’, there are many options available to designers and contractors regarding how to capture this information. In particular, the ISO 19650 Standards and associated templates and guidance from the UK BIM Framework provide a process for revision and naming conventions that might be a suitable mechanism. Whilst the Government has not mandated the use of BIM Standards, in its consultation response to the new regime, it stated that:

‘6.35 The government recognises the requests for additional guidance and that this guidance should clearly signpost to existing standards or best practice. The government strongly encourages the use of Building Information Management (BIM) standards through the Construction Playbook. The government has also worked closely with nima (formerly the UK BIM Alliance) to ensure the proposed approach aligns with the wider BIM Framework. The government will work with the Regulator on producing further guidance for the sector.’

Hopefully, this guidance will provide a more detailed view on how to standardize both submissions and record keeping.

Mandatory reporting

There is a new requirement for both the principal designer and principal contractor to inform the regulator of instances where safety may be compromised. This is in addition to the existing RIDDOR requirements. Government guidance on mandatory reporting provides examples of occurrences that should be reported as follows:

  • defective building work, including defective competent person scheme work that has been carried out as part of the wider building work;
  • fire safety issues likely to result in the spread of fire;
  • the use of non-compliant products or incompatible compliant products in the construction of the building;
  • inappropriate or incorrect installation of construction products; and
  • product failure against specification and claimed performance.

Including near misses, mandatory occurrences must always be reported, even if the cause of the incident or risk is immediately fixed. It is likely that, where product reports demonstrate that products do not meet their functional requirements, they may be placed on the list of unsafe products. Examples of such products can be found here.

It should also be noted that the guidance on mandatory reporting also states that: ‘If you submit a mandatory occurrence report, a change control application may also be needed to fix the problem’.

Gateway three requirements

The ‘golden thread’ will help provide evidence of the ‘as built’ position of the construction project. This, along with other information, will be required as part of the gateway three process. This process is where the client makes an application for a completion certificate. In order to do so, the application will have to include several types of information. This includes:

  • As built plans and information.
  • Final versions of all accompanying documents that were included in the gateway two application.
  • The controlled change log.
  • Information captured through construction.
  • Information captured through commissioning.
  • Information captured through final, functional inspections.

Another notable requirement is that the ‘relevant person’ (for HRBs, the accountable person) must demonstrate that they have received all of the handover information from the client to enable them to operate, maintain and understand the building systems. This latter requirement is impressive in that it will ensure a full handover set of information about the building, including plans, specification and related information.

The application for a completion certificate will take eight weeks. The building cannot be occupied until the regulator has provided the certificate.

Occupation and ongoing management

The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 covers how the HRBs should be managed once occupied. The new ‘accountable person’ role will be responsible for this activity and will cover both the management and record keeping in relation to the ‘golden thread’.

Summary

The process in the new Building Regulations regime will undoubtedly add complexity and time to an already complicated process. However, it has to be acknowledged that the industry needs to change. The underlying requirement is to focus on safety and not lowest cost.

Questions still remain over the use of some procurement methods in higher-risk buildings. Design and build, for example, may not survive in its current form in this sector. It will of course still be used in other sectors. Another question is whether the contractors will learn to love the process in such a way that they duplicate these design practices in sectors outside of higher-risk buildings. There are also questions concerning construction products, where more detail and clarity is required regarding the new regulator and the products to be regulated.

As the new regulations come into force, we are still learning how to apply the new regime. The regulator continues to recruit new staff, as do local authorities. I believe this is a really positive step forward for the industry. It reinforces the principles of teamwork though coordination and collaboration. It pushes good practice with process changes and record keeping, and it provides clients with the information they need to manage and maintain a hugely expensive asset. Fundamentally, it will drive safety-first thinking in the sector.

Further reading

The articles below explore this topic in detail providing guidance for specifiers and manufacturers: