The Building Safety Act: creating safer buildings sooner
As the Building Safety Act (BSA) drives building owners to improve the safety of residential buildings, investors and developers undertaking these works must manage project timescales around new requirements while the wider industry upskills and adapts.
Creating a new generation of safer buildings and more valuable assets for the long term means navigating the BSA as part of an ongoing investment decision-making process. TFT has been helping our clients meet these requirements by carefully managing timescales, inputs, outputs, the details required at each stage, the required competency of those involved, and risk mitigation measures throughout.
What does the BSA require from investors and developers?
The BSA relies on the ‘Gateway’ approvals process for new properties which are at least 18 metres or seven storeys in height and contain at least two residential units. These are defined as ‘Higher Risk Buildings’ (HRBs).
A pipeline of up to 500 HRBs are expected to be constructed in the UK each year, in addition to the existing stock of around 12,500 such buildings. Consent from the newly created Building Safety Regulator (BSR), which operates within the existing Health and Safety Executive (HSE), must be obtained for new properties at each of three new Gateway stages: 1 (Planning), 2 (Pre-Construction) and 3 (Completion prior to occupation).
The BSA became law in the middle of 2022, and this new process creates uncertainty for investors. In particular:
- Will pipeline developments get sign-off at Gateway 3 within the timescales promised by the act?
- Will key lease commencement dates will be met?
- Will extensive delays result in the loss of projected income streams?
These are valid concerns and are best addressed by planning for the various risks associated with each Gateway stage before they threaten to impact upon the project’s viability.
Considering the BSA from feasibility stages
Buildings cannot legally be occupied until a Building Completion Certificate is issued, meaning new developments are unusable until one is obtained.
However, certification is issued by the BSR eight weeks after registration of the property, and must be applied for. The quality of the application submission is essential given the timescales at hand, and must include an assessment and evidence of competence of key parties to a development.
The best way to develop a good understanding of the assessment process is to get early advice on the BSA at feasibility stages, and ensure the team can navigate its challenges.
During Gateways 1 & 2, realistic programming and procurement strategies are required to deliver the level of detail needed within the available timescales to ensure BSR consent is achieved and the expectations of interested parties are managed and properly built into investment strategies from the outset.
Don’t forget: the BSR seeks to achieve full compliance of all parts of the building regulations, not just fire and structural safety elements.
As with planning applications, the BSR has a 12-week statutory period to review applications and respond, although our current experience has seen a 16 to 20-week period for this review. It cannot be consulted throughout the design process and will only provide feedback once a full review is concluded. To date, just around 50% of BSR submissions have achieved consent at first application, a significant risk to project timescales. The additional time involved in re-submission can add weeks to the final practical completion (PC) date and the associated costs.
Clients and their project teams can take advice from approved inspectors to review designs and their likely compliance prior to making a BSR submission. However, there are no guarantees that compliance will be achieved. We always recommend that clients seek strategy advice as early in the process as possible allowing risk mitigations to be considered and built into project plans at the earliest opportunity.
Enabling practical and successful completion
As a project moves forward in Gateway 3, the focus shifts to obtaining PC and the Building Completion Certificate from the BSR. Managing and minimising timings between these two dates is another key risk. Because HRBs cannot be occupied until the Completion Certificate is obtained and the building registered with the regulator, completed buildings risk sitting empty for many weeks waiting for approval before allowing new occupiers to move in.
Clients – assisted by the duty holders – must submit a Completion Certificate application at the correct time with the right information, together with signed declarations from both principal contractor and designer that the works and building comply with the Building Regulations. At this point, the principal accountable person for the occupation phase must confirm that the ‘golden thread information’ and key building information has been handed over to them.
The BSR is required to approve the application for a Completion Certificate in a 12-week period, however, once again there is no certainty in this timeframe.
All occupied existing HRBs had to be registered with the BSR by 1 October 2023 after which point it became a criminal offence for the principal accountable person to allow the building to continue to be occupied. A Building Safety Case Report is also required for these registered buildings, with April 2024 being the date set by the regulator to provide comprehensive building safety information, outlining risk management strategies and – critically – fire and structural safety measures. In reality, the regulator has started reviewing safety case reports from this date, although they are taking a pragmatic and proportionate approach.
There is no assurance that the submitted Safety Case will gain approval and it may ultimately be rejected by the BSR. To have the best chance of success, project teams must begin the process now to develop a clear plan and demonstrate how they are meeting the act’s requirements.
The regulator aims to assess all buildings for the first time within five years with priority given to HRBs for assessment based on height and number of dwellings. Since the start of April 2024, the BSR has begun to call in buildings for assessment and issue Building Assessment Certificates, which is also when the requirements relating to registration for building inspectors and building control approvers became enforceable.
Our own, direct experience to date of the processes outlined is that these have already exposed many potentially serious issues with existing properties which fall short of the requirements expected by the BSR, particularly those relating to structural and fire safety. It is clear that bridging the knowledge gap between identified challenges and producing viable solutions is required to meet those requirements across the board. Having the right team able to demonstrate competency is essential for this. This is not just the key duty holders – including the client, all contractors and designers – but also fire, façade and structural engineers and the legal team.
Stakeholders need to come together as early in the process as possible, to anticipate and properly manage any possible barriers and delays. Through better integration and involvement of all relevant members of the development team as early as possible, the effectiveness of this continually adjusting statutory process to deliver a project can be optimised and the risks reduced to building owners, investors and users.
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