Navigating Compliance and Risks in the Changing Landscape of UK Building Regulations

With the enactment of the Building Safety Act 2022, a new era of compliance in the UK's construction and building management sector has begun. This pivotal legislation brings forth stringent requirements and a heightened focus on safety in high-rise buildings and other construction projects. Non-compliance under this act not only poses significant legal and financial risks but also endangers the health and safety of occupants and the general public. Understanding the implications of this act is crucial for industry professionals, as it mandates rigorous standards and procedures to ensure the structural integrity and safety of buildings. The act's comprehensive approach towards safety, from design to occupancy, signifies a transformative shift in the building sector, emphasising accountability and continuous oversight. This article explores the risks associated with non-compliance and the profound impact of the Building Safety Act 2022 on the built environment.

Article contents:

• Building Safety Regulator
• Risk 1: Project Delays
• Risk 2: Inspections and Compliance Testing
• Risk 3: Fines and Monetary Damages
• Risk 4: Work Stoppage
• Risk 5: Health and Safety Risks
• Risk 6: Reputational Damage
• Conclusion

Before we delve into discussing the repercussions of not adhering to regulations, let's begin by addressing a crucial question: which regulatory authority is tasked with identifying non-compliance?

Building Safety Regulator

The Building Safety Regulator (BSR), a new entity within the Health and Safety Executive (HSE), is responsible for three primary functions. Firstly, it enforces a stricter regulatory framework for buildings classified as higher risk under the Building Safety Act. Secondly, it monitors safety and standards across all buildings. Thirdly, it fosters skill development within the built environment industry and building control sector. BSR's oversight extends to new constructions and buildings undergoing usage changes that fall under the higher-risk category. Its primary goal is to prioritise resident and user safety in the design and construction of these buildings. Once occupied, the BSR advocates for measures to minimise fire spread and structural failures, aiding building owners in making cost-effective and impact-conscious decisions. This involves managing risks through prevention, control, mitigation, and active oversight. Additionally, BSR regulates the building control profession by evaluating the performance of building control entities and the proficiency of registered inspectors and approvers, thus standardising, and enhancing industry practices. This regime also aims to ensure accountability and promote collective learning within the built environment sector.

However, when there is a failure to comply with building regulations, it is the responsibility of the building control authority to track back through the design and building processes for the project for each of the relevant dutyholders and take appropriate action for non-compliance with the building regulations as appropriate.

So, what are these actions?

Risk 1: Project Delays

Did you know that the building authorities can prevent your project even before it has started?

In building construction, "gateways" refer to specific stages or checkpoints in the construction process where compliance with regulations and standards is rigorously assessed. These gateways are designed to ensure that at each critical phase of construction, from initial design to completion, all safety, quality, and regulatory requirements are met. This process helps in identifying and rectifying potential issues early, thereby enhancing the overall safety and integrity of the building project.

1. Gateway 1 - Planning Stage: This is the initial phase where the focus is on the design aspects of the building. It involves a thorough assessment of the building's design to ensure compliance with safety standards and regulations.
2. Gateway 2 - Pre-Construction: Occurring before construction starts, this gateway involves a detailed review of the building's construction plans and fire safety strategies. The aim is to ensure all potential risks are addressed before physical construction begins.
3. Gateway 3 - Completion/Final Stage: This final checkpoint happens before the building is occupied. It involves a comprehensive review to ensure that the construction matches the approved designs and meets all the safety and regulatory requirements.

First Checkpoint

According to the 2022 Building Safety Regulations, there is a ‘hold point’ following Gateway 1, prior to proceeding to Gateway 2, where duty holders must inform the relevant building control authority at least two business days before they plan to begin their work by submitting a notification informing them of the building's construction plans and fire safety strategies. This deadline is applicable for buildings with lower risks, but for buildings with higher risks, the notification period is extended to five business days. Additionally, another notification must be sent within five business days after the work has officially started of the project.

So, what exactly are you supposed to include in this notice? In your application, you will need to:

• Present a thorough overview of the planned work, including details about the building itself and the individuals involved, such as the client, main contractor, and principal designer.
• Include standard building information like the site location plan, property boundaries, and a fire and emergency document.
• Supply a construction control plan, outlining how construction activities will be managed to ensure compliance with building regulations, along with a statement confirming adherence to these regulations and explaining the chosen approach.
• Provide a change control plan to demonstrate how proposed modifications will be evaluated, and if applicable, a strategy for partial completion.

If the building control authority is not satisfied with the information provided or does not believe that the design is compliant with the functional requirements of building regulations, it has the authority to issue a rejection notice within four weeks from the date when the initial commencement notice was submitted.

The BSR may also request further information such as plans, documents and prescribed documents for approval. This can prevent a project from proceeding to Gateway 2 until BSR is satisfied that the design meets the functional requirements of the building regulations.

Second Checkpoint

The third and final gateway in the building control process introduces a crucial "hold point" at a project's completion, prior to occupancy. This stage prioritizes the safety of future occupants by ensuring that construction aligns with safety standards. It plays a vital role in the new regulatory framework by enabling the Building Safety Regulator (BSR) to verify compliance before issuing a completion certificate.

This is where duty holders are expected to present the ‘Golden Thread’ of information, compiling any relevant information spanning from the planning stage to its completion in the form of an application.

The Building Safety Regulator (BSR) will engage in consultations with the fire and rescue service and scrutinize the submitted completion certificate application. This application, signed by the client, principal designer, and principal contractor, affirms that the High-Risk Building (HRB) has been constructed in compliance with building regulations.

In cases where there is inadequate evidence or inconsistencies where the constructed building does not match the plans approved following Gateway 1, the BSR might reject the certificate of completion, preventing the building from being registered as complete and therefore delaying building occupation.

But what happens if you commence work without approval from the BSR?

Risk 2: Inspections and Compliance Testing

Inspections, audits, sampling, and testing by the Building Safety Regulator (BSR) are crucial components in managing risks associated with non-compliance in the built environment. These processes are designed to ensure that buildings, especially those classified as higher-risk, adhere to the necessary safety standards and regulations.

Inspections

Inspections play a vital role in identifying compliance issues and ensuring the safety and security of buildings. Qualified inspectors conduct on-site inspections using specific criteria and checklists. These inspections cover various aspects of a building’s safety, such as structural integrity, electrical systems, fire safety measures, and HVAC systems. The frequency of these inspections can vary based on the type of building and local regulations, but they typically include routine and periodic inspections, pre-construction and post-construction inspections, inspections in response to complaints, and emergency or post-incident inspections.

Audits

Safety audits are conducted to evaluate the reliability of health and safety systems in a building. They assess risks and hazards in the workplace and are instrumental in preventing work-related incidents and ensuring compliance with safety requirements. These audits help in identifying areas for improvement in safety practices. They include a thorough review of documentation (such as building drawings and safety systems), equipment checks, and hazard identification. The goal is to ensure all safety measures are adequate and in line with regulations. This may involve visual inspections and non-destructive testing to evaluate the condition of structural elements.

Sampling and Testing

Compliance testing, or conformance testing, is a method used by the BSR to ensure adherence to specific regulations or standards. It involves testing controls related to regulatory risk. This can include various types of testing, such as checking the safety of electrical systems or evaluating fire safety measures. If initial tests indicate compliance, secondary controls may require less scrutiny. However, any violations found are treated seriously, as they indicate non-compliance with laws or regulations.

The following sections will provide a detailed explanation of the actions taken when non-compliance is detected after an inspection or compliance test.

Risk 3: Fines and Monetary Damages

In most cases, acts of non-compliance with building regulations result in the issuance of fines and penalties by the BSR.

You can be charged for the following acts of non-compliance:

• In case any building work has been carried out without BSR approval.
• In case the finished building work has not been carried out in accordance with building regulations and/or is not consistent with the as-built plans submitted as part of the design application.
• BSR becoming aware of potential non-compliance by the Principal Accountable Person and/or Accountable Person(s). This could be by a variety of internal and external sources, for example: intelligence (including, for example, from complaints and reports), poor performance issues, near-misses, and whistleblowing.
• Non-compliance identified during inspections, testing, and sampling of buildings to ensure compliance with building regulations.
• Non-compliance with building safety risks or safety occurrences identified during investigations and inspections.
• Professional misconduct or contraventions of the code of conduct by registered building inspectors, leading to regulatory intervention.
• Work done during any appeal against a decision of the regulator.

Consequences of non-compliance include financial charges, which are calculated based on factors like the time spent by regulator staff on relevant functions and intervention, additional costs incurred by the regulator, and other relevant factors.

For example, for the trigger of “identification of non-compliance or suspected non-compliance”, the BSR will need to intervene to secure compliance with “a building enactment” or “requirement”, e.g. compliance and stop notices, then the amount payable by the regulated party is £144 per hour worked for BSR staff, plus any additional costs. This is one of many possible charges as stated in the Building Safety Regulator charging scheme.

Risk 4: Work Stoppage

The Building Safety Act 2022 introduces stronger enforcement measures for building regulation violations. It empowers local authorities and the Regulator to issue compliance and stop notices when building regulations are breached.

A compliance notice mandates specific corrective actions within a specified timeframe. However, stop notices are only applicable under certain circumstances:

• When carrying out the work would go against prescribed building regulations.
• When a previous compliance notice has not been followed.
• When the work violates regulations and poses a potential serious harm risk.

A stop notice requires the cessation of work until the necessary remedial actions are taken. It can apply to an entire site, a portion of it, or a specific work area.

The Regulator can issue notices for high-risk building work (and other work under its supervision through a regulator's notice), while local authorities can issue notices for all other building work. Failing to comply with either a compliance or stop notice is a criminal offence, punishable by an unlimited fine and/or up to two years in prison.

Risk 5: Health and Safety Risks

Health and safety risks resulting from non-compliance in the construction sector, particularly regarding safety-critical fixings, are a major concern. Non-compliance can lead to structural failures, posing significant dangers. Safety-critical fixings are essential components that secure elements of a structure, ensuring stability and safety. Incorrect installation or use of inadequate materials for these fixings can result in catastrophic failures, potentially causing building collapses, accidents, or fatalities.

The Grenfell Tower tragedy, a devastating fire in a London high-rise in 2017, serves as a stark reminder of these risks. The building's non-compliant cladding contributed significantly to the fire's spread, leading to numerous fatalities. This incident underscores the importance of strict adherence to fire safety regulations and the use of approved, safe building materials and practices.

The risks extend beyond immediate physical harm. There's also the potential for long-term health issues caused by exposure to unsafe building materials or poor construction practices. For instance, inadequate ventilation systems or the use of hazardous materials can lead to respiratory illnesses or other health problems over time.

Therefore, compliance with safety regulations, especially regarding safety-critical fixings, is crucial to prevent such risks. Regular inspections, adherence to industry standards, and using certified materials and methods are essential practices to mitigate these dangers. Ensuring that all construction activities and installations meet the required safety standards not only protects physical well-being but also safeguards against the long-term health risks associated with non-compliant construction practices.

Additionally, ensuring the competence of installers is a critical aspect of compliance in construction. Competent installers have the necessary skills, knowledge, and experience to correctly install these crucial components, reducing the risk of structural failures and ensuring overall building safety. Their expertise is vital in adhering to safety standards and regulations, thus playing a key role in preventing accidents and long-term health issues associated with unsafe construction practices. Proper training and certification of installers are essential to ensure high standards of safety and compliance in construction projects.

Risk 6: Reputational Damage

When a company fails to adhere to regulations, it not only faces legal and financial repercussions but also risks its standing in the industry. This damaged reputation can lead to a loss of trust from clients, partners, and the public, making it challenging to secure future projects and bids.

Clients and partners often seek reliable companies that comply with regulations, ensuring project safety and quality. A history of non-compliance can make a company appear unreliable or negligent, leading potential clients to choose competitors for new projects and bids. This loss of business opportunities can have a long-term impact on the company's growth and sustainability in the market.

Moreover, in an industry increasingly focused on sustainability and safety, maintaining a good reputation is vital for long-term success. Therefore, strict adherence to regulations is not just a legal necessity but also a strategic business decision to maintain and enhance market standing.

Conclusion

In conclusion, the enactment of the Building Safety Act 2022 has ushered in a new era of compliance and safety in the UK's construction and building management sector. This legislation places a strong emphasis on safety, accountability, and continuous oversight throughout the entire building lifecycle, from design to occupancy.

In this new regulatory landscape, it is imperative for industry professionals to fully grasp the implications of non-compliance with the Building Safety Act 2022. Strict adherence to safety standards, regulatory requirements, and ethical practices is not only a legal obligation but also a strategic imperative for maintaining trust, securing business opportunities, and ensuring the well-being of all stakeholders in the built environment.

References:

• The three gateways to building safety. Available at: https://buildingsafety.campaign.gov.uk/wp-content/uploads/sites/157/2023/09/23_039-Building-Control-Authority-Booklet-3.pdf

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   Building Safety Regulator Charging Scheme, HSE. Available at: https://www.hse.gov.uk/building-safety/charging-scheme.htm