The Building Safety Act marks a wholesale change to the way the building process and demonstration and enforcement of compliance associated with buildings deemed higher risk (see consultation, now closed, on the definition of higher risk buildings) will be managed.

The Act provides a framework for change and Government is now consulting on how elements of wider regulation need to change and principles set down within the Act that will be brought through in secondary legislation.

A portal is now open looking at policy proposals for legislation government intend to introduce to create the building control procedure for higher-risk buildings, as well as wider changes proposed to improve the building control system overall.

They are seeking now views on:

• New duty holder and competence requirements on all building work and additional duties for those working on higher-risk buildings. These new roles and requirements aim to ensure a stronger focus on compliance with the regulations
• A series of robust hard stops (“gateway points”) to strengthen regulatory oversight before a higher-risk building is occupied
• The approach to Regulator’s notices to support building projects which comprise both higher-risk building work and non-higher risk building work
• Stronger change control during the construction of higher-risk buildings
• Additional requirements for building work carried out in existing higher-risk building work e.g. refurbishments
• The process of certifying building work that have been carried out without building regulations approval (regularisation)
• Establishing greater record keeping and management in higher-risk buildings (golden thread of information – and a key consideration as to how accoutability and responsibility are managed)
• A mandatory occurrence reporting system in higher-risk buildings
• Wider changes to the building regulations to help align the existing system with the new system
• More rigorous enforcement powers for building work in all buildings to focus incentives on the creation of reliably safe buildings from the outset and the approach taken to the review and appeal of building control decisions
• The transitional provisions for changing to the new higher-risk building regime

The impact on the wider Building Regulations and Building Control Process

As part of this work there is a focus on aligning changes and requirements of higher risk buildings with wider changes to the building regulations – this is consistent with concerns raised through the development of the Act that highlighted concerns over the complexity of a two tier system of Buildinig Control and that Building Control Authorities will now be regulated through the HSE.

Aspects of this includes recommendation of a more onerous application that, instead of depositing full plans, applicants intending to carry out building work on a building that is not a higher-risk building will need to submit a building control approval application with full plans to the local authority prior to commencing building work. The building control approval application will be required to demonstrate how the proposed building work complies with all applicable building regulations’ requirements.   It is likely to lead to greater detailing requirements related to functional requirements of the regulations.

It is also notable that demonstration of competence requirements and demonstration of competence will be under closer scrutiny through the new process for all aspects of the Building Regulations and more consistet with the concepts of accountabilty and dutyholders outlined in the Act as well as a press for greater collaboration, with the inclusion of statements such as:

We propose that the following duties will apply to all dutyholders during design and construction, they must:

• Plan, manage and monitor their work to ensure the building work complies with building regulations;
• Cooperate with other dutyholders (e.g. share information, have effective routes of communication, and support other dutyholders in achieving compliance with the regulatory requirements imposed by the new regime for higher-risk buildings, including meeting gateway two and three, golden thread and mandatory occurrence reporting requirements); and
• Ensure they and the people they appoint are competent (have the necessary skills, knowledge, experience and behaviours and where organisations are involved, the appropriate organisational capability) to carry out design work and building work they are engaged to do and only undertake work within the limits of that competence.

These dutyholders will be aligned to the those in the Construction (Design and Management) Regulations 2015 (CDM).

There are also some interesting aspects related to the Golden Thread that may be complex to manage in the context of start/stop Gateways:

It is expected that the design and construction phases will overlap and influence each other, rather than run consecutively. The Principal Designer should be responsible for updating and managing the golden thread during the design phase. We propose that they will be specifically responsible for:

• Creating and developing the golden thread (although initial information about the building may be provided by the client) and managing and updating this throughout the design phase;
• Finalising the golden thread and handing it over to the Principal Contractor on completion of the design phase;
• Collaborating with the Principal Contractor to ensure any design work done during the construction phase is captured in the golden thread;
• Ensuring that the golden thread meets the required standards/principles; and,
• Cooperating and sharing information with the Principal Contractor as necessary.

Associated charges for the Building Control Process also form part of this consultation.

 A New In Occupation Regime

Consultation is also taking place on concerning the in-occupation regime for occupied higher-risk buildings, whilst most of this is not on the surface directly relevant to the construction process and FIS members, it does include some important information related to O&M Manuals and the requirements of the Golden Thread.   The CPA has prepared an excellent summary that FIS Members Can Download here

Next Steps

The consultation deadline is the 12th October.

Full details of the consultation are available here – please consider responding directly, but also sending any specific comments through to FIS on iainmcilwee@thefis.org.uk that we can build in to any required sectoral response.

Aspects of this consultation will be discussed at the upcoming FIS Working Group Meetings – see details of times and locations here.  The FIS will be feeding in our views and working closely directly with the Department and with Construction Products Association and the Construction Leadershp Council to ensue that the industry is seeking concesnus and is aligned and collaborating when we focus on compliance.

As the deadline for transition from CE to UKCA marking approaches, and in response to continuous industry pressure over capacity and capability, there has been an announcement from the Government regarding some provisions that have been agreed to simplify UKCA marking for products in England, Scotland and Wales.

The full guidance from the Government can be found here, but the principal changes of interest as they relate to construction products are summarised below.

Spares – The UK will continue to accept spares onto the GB market to repair, replace and maintain products to the same conformity requirements in place at the time the original product or system was placed on the GB market.

• Businesses will need documentary evidence to demonstrate the intended use of a product as a spare part.
• This applies to products in stock as spares before the deadline. FIS is seeking further clarity on whether any nuance exists for construction products after the deadline.

Imported Goods – Existing CE marked stock imported into GB under contract before the end of 2022 will not need re-testing and re-marking.

• Products imported into GB for further manufacture or processing, will not be considered as placed on the market.
• FIS is seeking further clarity on the definition of “further manufacture or processing”.

Re-Testing Costs – Manufacturers whose products are tested under AVCP System 3 by an EU notified body before 31 December 2022 can use this evidence to obtain a UKCA mark without having to retest through a UK approved body.

• All new testing after this date must be done through a UK approved body.

Reduce Re-Testing Costs – The UK will allow certificates provided by non-UK conformity assessment bodies (CABs) issued before the end of this year to be used as a basis for UKCA marking certification.

• The goods must still bear the UKCA marking, and will need to undergo conformity assessment with a UK Approved Body at the expiry of the certificate or after 5 years (whichever is sooner).

There is no clarification at this time if the EU intends to mirror any of these simplification measures, so it is assumed that there are no relaxations on the use of EU notified bodies and/or CE marking goods that are being sent to the EU.

Please take some time to review how this will impact your businesses and let us know what outstanding questions or inconsistencies remain so that we can feed these back to Government.

FIS has created how-to guidance for its members which can be Conformity Marking – how-to guidance.