How the Building Regulations apply to Higher-risk Building Work

Many development teams are navigating the Building Safety Act landscape in England as part of everyday delivery, yet gatekeeping questions continue to cause delay, for example whether you have to go through the lengthy gateway process for minor remedial works to a higher-risk building (HRB). This Legal Update considers how the “building work” definition under the Building Regulations 2010 (BR2010) interacts with the requirements for HRB works under The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the HRB Regulations) and whether works to an HRB have to be “building work” to be caught by the HRB regime.

What is “building work” under BR2010?

Where work is classified as “building work” and the works are not exempt or scheme work under BR2010, the works are subject to building control (so-called “notifiable work”). For HRBs, building control approval must be sought from the Building Safety Regulator (BSR) rather than from a local authority or registered building control approver (RBCA) (previously an approved inspector).

The core concept of “building work” in regulation 3 BR2010 has not been amended by the Building Safety Act 2022 or the HRB Regulations and is deliberately technical. 

Do the works have to be “building work” to be caught by the HRB Regulations?

While we know that BR2010 applies to all buildings in England, including HRBs (save for certain disapplied provisions), the relationship between BR2010 and the HRB Regulations and the interplay between exempt work under the two regulations is unclear. The somewhat circuitous definitions for HRB works do not mention “building work” and neither BR2010 nor the HRB Regulations explicitly say that works must first or also be “building work” before they can be captured by the HRB Regulations, or that the exemptions under BR2010 are relevant to HRBs. 

That said, the BSR has confirmed in correspondence that the HRB Regulations do not apply to work unless it is “building work”. This, coupled with the fact BR2010 does not disapply the “building work” provisions for HRBs (and it does disapply others) means it is likely that the works must be “building work” if the HRB regime is to apply.

Therefore, where the works involve an HRB (whether that’s building, converting or materially changing the use of an HRB or undertaking work to an existing HRB), you should assess whether the project comprises “building work” under BR2010, a question best answered by technical professionals. If the proposals would have been notifiable building work requiring approval before the HRB regime existed, that remains a strong sense-check.

Where the works are to an existing HRB, an assessment must also be made as to whether the proposals comprise Category A (more major defined works) and/or Category B works (any other works). Different gateway 2 requirements apply depending on the category of works, with Category A works carrying heavier front-loaded information requirements. The emphasis on early, complete and coherent information at gateway 2 make it important to accurately categorise the works as soon as possible to avoid the time and cost of a rejected application. 

Are the works exempt or scheme work? 

The next step is to determine whether any exemptions apply under BR2010 or the HRB Regulations, which would avoid the need for the gateways.  

The HRB Regulations and the BSR’s guidance: Building control approval for higher-risk buildings - GOV.UK make clear that work in respect of an HRB which consists only of “exempt work” or “scheme work” does not require building control approval and is not subject to the gateways or other requirements of the HRB regime. Schedule 2 of the HRB Regulations (Exempt Work) prescribes work which is exempt from the HRB Regulations and comprises a technical list of relatively minor works and services. Scheme work (self-certification and third-party certification schemes) is defined by reference to BR2010, which prescribe how work which is only of that kind is regulated in terms of building control. 

Note that the work must solely comprise of exempt or scheme work. The guidance makes clear that if this type of work is part of a wider building project, it must be included in the gateway 2 building control approval application for that project. 

This has real implications for the programme and packaging of works. Early attempts to hive off like-for-like elements or minor alterations to accelerate site mobilisation often fail once the full project scope is settled. There is no parallel, approval-free track simply because those items would be exempt if delivered alone.

Emergency repairs

In addition, for building work to an existing HRB, a gateway 2 building control approval application is not needed before “emergency repairs” are carried out, but the BSR must be notified of such work as soon as practicable after the work has started, together with the reasons for the urgency (regulation 10 HRB Regulations). The client must also submit a regularisation certificate application to the BSR as soon as reasonably practicable. Again, the works must consist only of emergency repairs rather than being part of a wider project.

The BSR has made clear that the procedure for emergency repairs should not be relied on to avoid the gateways, but applies to genuinely urgent remediation or replacement, an example being the breaking down of a fire door by the emergency services to gain access to a residence.

“Material alteration”

One issue circulating in the market deserves a brief mention. Some developers have advanced an argument around “material alteration” (regulation 3(2) BR2010) to contend that certain remedial or other works are not “building work”. In short, the suggestion is that if a remedial scope does not improve the relevant element, or results in a lower specification, it does not amount to a “material alteration” and is therefore not “building work”. This approach leans heavily on technical judgments about performance and outcomes and should be treated with care, particularly in view of the BSR’s approach and intentions for the HRB regime. 

In practice

The answer to what is “building work” and what is exempt is technical, not simply legal, and the proposed works as a whole must be considered on a case-by-case basis. It is crucial to get this analysis right as the consequences for failing to comply with either set of regulations are draconian (fines, prosecutions, and enforcement notices) and could have a detrimental impact on a disposal or letting down the line.

Where the line remains unclear, engage early with the BSR where possible. Responses may not be immediate, so build the query into the programme rather than waiting until tender or mobilisation. Meanwhile, avoid relying on fine distinctions to drive major commercial decisions. The regimes are designed to overlap: BR2010 sets the baseline for what is notifiable work, and the HRB Regulations layer higher-risk categories, exemptions and procedures on top. 

In the case of potentially exempt works, teams should start from the position that a gateway 2 application will be needed for HRBs and then test, with technical input, whether every element of the scope can be taken outside that process. In practice, that is unusual.

Note that the ongoing safety management duties in respect of an existing HRB under the Building Safety Act 2022 apply regardless of whether works constitute “building work”. For example, the principal accountable person and other accountable persons for an occupied HRB still have ongoing duties under Part 4 of the Building Safety Act 2022.