Building Safety Act (BSA) Update – Retail Focus

Introduction

The Building Safety Act 2022 (BSA) came into force from 1 April 2023. The introduction of the BSA was a direct result of safety concerns for occupants of high-rise buildings after the Grenfell Tower tragedy with the intention of improving the design, construction and management of higher-risk buildings.

Whilst retailer occupiers and developers of buildings with retail and commercial units may not immediately consider that the BSA will apply to them, there will be circumstances in which such developers and occupiers will find themselves in a position whereby their building is caught by the BSA and accordingly they will be subject to the obligations imposed by the new regulations under the BSA.

This article has been drafted to provide an overview of the new requirements set out by the BSA and some practical considerations for those whose premises are, or may be, subject to the BSA regulations.

1. Implications for all buildings

It is important to note that parts of the BSA will have implications for all buildings – not just the relevant properties specifically noted in the BSA (which we will discuss in further detail later). This is due to the following:

• The role of Building Safety Regulator (“BSR”) is created and will be responsible for the performance of the building control sector to ensure standards are met, and for setting building standards.
• The BSR will be given powers to regulate construction products for the UK.
• The BSA will establish a New Homes Ombudsman scheme for new build properties, to hold developers to account.

2. Relevant properties – High Rise Buildings (“HRBs”)

Regarding the buildings that the BSA sets out to specifically regulate, these are as follows:

• New or existing occupied buildings over 18 metres high; OR
• New or existing occupied buildings with seven storeys or more; AND
• Contain at least two residential units.

Care homes and hospitals meeting the same height threshold will also be deemed HRBs.

The BSA places specific duties on the organisations which own and manage HRBs to identify risks, and to put certain measures in place to ensure the safety of the building and the residents situated therein. There are also key evidential requirements that must be adhered to.

3. Commercial and retail units

It may not be obvious why owners and occupiers of commercial and retail units might be affected by the BSA, there is no exemption for HRBs that contain commercial and retail units – for instance on the lower floors of buildings where residential units sit above them.

With this in mind, if you are carrying out works to develop a retail unit within a mixed-use building with a residential element and it is classified as an HRB, or constructing a mixed-use building that fits the HRB criteria, you will be subject to the obligations imposed by the BSA. In which case you will need to consider the regulations that apply to you – the first step of which will be to consider the timing of the construction works that are being undertaken.

4. Timing: The transitional period

The new building control measures under the BSA came into effect on 1 October 2023 and the 6-month transitional period started on 1 October 2023 and comes to an end on 6 April 2024.

Transitional arrangements may apply from that date to developments already underway and which meet the transitional criteria set out in the transitional regulations:

• The initial notice (IN) must have been given (and not rejected) by 1 October 2023 (limb 1A); or
• Full Plans deposited with Local Authority (and not rejected) by 1 October 2023 (limb 1B); and
• High Risk Building (HRB) work must be “sufficiently progressed” by 6 April 2024.

It will also be necessary for the Approved Inspector (AI) under limb 1A to be registered as a building control approver by 6 April 2024 to enable them to continue to supervise ongoing HRB work, if not the development will transfer to the BSR.

If the HRB development meet the above criteria it will carry on under the current (pre-1 October) regime. If the HRB development does not meet the above criteria it will pass to the BSR.

However, the “in occupation” requirements in Part 4 of the BSA will apply.

Meaning of “Sufficiently Progressed”

• New HRBs – this is when the pouring of concrete of the permanent placement of the trench pad or raft foundations or the permanent placement of that building has started.
• Existing HRBS – when the work has started.
• Existing HRBS – material change of use – when work to effect the change has started.

In both cases HSE has advised that “started” means the undertaking of permanent building works as described in the Building Control Application (BCA) and not site set up, demolition, stripping out or other temporary works. There must be a physical commitment to carrying out the works in the BCA.

5. Key role changes

The Building Safety Act 2022 will see the implementation of two key roles:

• The BSR; and
• an Accountable Person (AP).

BSR

• The BSR will be responsible for overseeing the safety and performance systems of all buildings. They will be given powers to enforce the rules and act against those that break them. And for high-risk properties, they will be able to implement more stringent rules, including how they are designed, constructed, and occupied.
• The BSR becomes the building control authority for all HRBs.

AP

• APs are landlords or freeholders who are in charge of repairing the building. This can also be a person responsible for managing all common areas of the building (e.g. a managing company) when there is more than one AP.
• In buildings where ownership structures are complex, there may be more than one AP, in which case there will be a Principal Accountable Person (PAP).
• The AP will have an ongoing duty to assess building safety risks and provide a ‘Safety Case Report’ which demonstrates how building safety risks are being identified, mitigated, and managed on an ongoing basis. They will also have to demonstrate how they are ensuring residents’ safety.

Amendments to the Act have removed the clause which would have required the AP to appoint a Building Safety manager to support in the planning, managing, and monitoring of the various tasks necessary to ensure that AP duties are complied with.

Whilst the prescribed role has been removed, the AP’s responsibilities for complying with the overall requirements of the Act are unchanged, and they will have to put in place appropriate arrangements to ensure they meet these.

The AP will therefore have the flexibility to determine what staffing structures, skills and competencies are appropriate for their risks and ensure people are trained to carry out the function.

What is the Building Regulator Principal Designer (BRPD) role?

• Principal Designer – anyone can take on the role so long as they possess the competencies set out in the relevant competencies framework within the BSA (see PAS 8671).
• The duty must always stay with the directly appointed dutyholder, as long as the person appointed has the relevant skills, knowledge and experience.

What is the Building Regulator Principal Contractor (BRPC) role?

• Contractors are under a strict obligation to ensure that the building work they carry out is compliant with all relevant requirements (i.e., building regulations).
• Unlike the duty applicable to designers, this is not limited to taking “all reasonable steps” to ensure compliance.
• The BRPC must plan, manage and monitor work and co-ordinate matters to ensure the building work complies with all relevant requirements, whereas the BRPD obligation refers to “all reasonable steps”.
• Where any contractor (or designer) (other than the BRPD / BRPC) is carrying out part of the works, they are under an obligation to consider ‘other work which directly relates to the building work’ and report any concerns as to compliance with the building regulations, to the BRPD / BRPC.
• There is a risk that this obligation could open the door to a positive checking requirement by the BRPC on the work of others. It is important therefore that contractors are obligated to and ensure that they flow down the relevant obligations and competency expectations to their sub-contractors and employers ensure all members of their professional team are also appointed accordingly.

6. Dutyholders’ Summary

The new regulations for HRBs mean that dutyholders are required to exhibit certain competencies and appropriate behaviours. In summary, these are as follows:

1. Meet competency requirements: All appointed individuals working on HRBs must possess the necessary skills, knowledge, experience and conduct to fulfil their roles.
2. Put statutory dutyholders in place: These dutyholders will be held accountable during the design and construction phases of buildings. Gateways 2 and 3 of the BSA (discussed below) will ensure a thorough inspection of building regulations requirements, guaranteeing that building safety is thoroughly considered at every stage of the design and construction process.
3. Create a ‘golden thread’ of information: This requires that all building information and processes are up to date, accurate and stored digitally to manage action, and audit documents for gateway approval and compliance. This ensures the availability of crucial data for effective decision-making for maintenance and safety management.
4. Maintain mandatory reporting: Fire and structural safety occurrences for the design, construction and occupation stages of high-rise residential buildings must capture any safety risk and be reported to the newly established Building Safety Regulator. This reporting requirement aims to enhance transparency and facilitate timely action in addressing potential risks.

7. Gateways

What are the “Gateways” for the Building Safety Act?

• Gateway one: at the planning application stage;
• Gateway two: before building work starts; and
• Gateway three: when building work is completed.

8. Golden Thread

What is the Golden Thread of Information?

• Under the BSA, owners/managers will be required to collect, monitor, and manage data on their buildings and how safety risks are being managed to satisfy the Golden Thread of Information obligations and provide the evidence for their safety cases.
• Gateway 3 acts as the final checkpoint at the completion stage of a building acting as the decisive stop/go point before asset owners can start moving residents into a higher-risk building.

Application for Gateway 3

• An application for Gateway 3 approval can be made when the “building work” relating to the HRB has been completed. It is likely that an application could be made before an entire project is complete.
• For example, external landscaping works unrelated to the HRB building work would not need to be complete.
• It is also likely that an application can be made before completion of all internal fitting out work (such as painting or flooring).
• Exactly when an application can be made will need to be considered on a case-by-case basis.

Employers of building work will therefore need to ensure that their contractor has considered and adapted their programme(s) to ensure that an application for Gateway 3 approval can be made as far in advance of PC as possible.

While the building work concerning the HRB needs to be complete before an application can be made, other unrelated works (for example, minor fitting out, external works) do not need to be complete.

If they are not completed, the eight-week period will cause delay to occupation and countless discussions on projects as to who takes that risk.

9. Practical Points to consider

The HSE has advised that the regulator is prepared to cope with the applications and work with the industry to minimise delay because it is not in anyone’s interest for there to be multiple unoccupied HRBs left empty for eight weeks after completion. However, during the stage in which the application is being considered, it is important that the following considerations are made:

• Who is responsible for the insurance of the building?
• Who will be responsible for security of the building?

A. Practical Completion (PC)

• Whilst the BSA obligations continue to work their way into the construction sector, it is contemplated that Gateway 3 certificates for HRBs will become as common a requirement of PC under a building contract as Building Control certificates currently are. Delays to occupation of HRBs will therefore become a very real possibility and we expect that employers and contractors alike will look to work in provisions to limit the potential for additional cost incurred by such delay.

Will certification of assessment hold up PC?

If the transitional arrangements do not apply:

• Check how PC is defined. PC is considered to mean the building is finished to a state where it can be put to its intended use, but small or minor defects may still be present.
• Pursuant to JCT contracts it is the responsibility of the Employer’s Agent (D&B) or the Contract Administrator to decide when PC has been achieved, as most standard form contracts do not prescribe the meaning of PC. This is left entirely to the professional judgement of the Employer’s Agent / Contract Administrator.
• Under JCT SBC and DB, PC is deemed to have taken place on the date stated in the certificate/statement for all the purposes of the Contract. That means that even though practical completion may not have been achieved it will be treated as though it had. A similar situation arises where the employer takes partial possession of the works (with the consent of the contractor) where particular attention is required in defining the part taken over.
• It is therefore likely that the employer under a building contract will look to amend the definition of Practical Completion, or include certain pre-conditions, to include reference to the issuing of the BSA completion certificate. A compromise may be reached whereby PC can occur with the BSA completion certificate to follow (e.g. by an extension to the rectification period to include the period in which the BSR is considering the Gateway 3 application) however the employer is likely to want to ensure it can recover costs via LADs by making PC contingent on the certificate having been issued.

B. JCT Suite 2024

The JCT forms of contract have yet to be updated to reflect the BSA provisions. It is reported that the upcoming publication of the JCT 2024 suite of contracts will contain major updates in respect of the BSA and its secondary legislation. Those updates contemplated that will relate to the BSA are as follows:

Extensions of Time

• We understand from the information provided regarding the JCT 2024 that the new contracts will:
  • Take significant steps to enhance the provisions related to extensions of time.
  • Introduce new relevant events to include epidemics and the exercise of ‘statutory powers’.
  • Reduce the time available to the employer to assess interim extensions of time from 12 weeks to 8 weeks from receipt of the Contractor’s Particulars.

Speak to a specialist

For more information on this subject, or to discuss your business’s circumstances, please get in touch with Jamie or a member of her team.

Posted: 7 March 2024