Eligibility for transitional arrangements in building control approval - Building Safety Act 2022

The Building Safety Regulator (BSR) has recently reminded developers of building work in England, whether involving a higher-risk building (HRB) or not, of the required steps they must take to ensure their projects qualify under the transitional arrangements. These arrangements allow projects to stay under their current building control regime and, in the case of HRB works, avoid transfer to the BSR: Eligibility for transitional arrangements in building control.

In summary, for most projects:

• suitable building control arrangements must have been in place before 1 October 2023 and must remain in place in order to benefit from the full transitional arrangements;
• sufficient progress of the works and notice of this must be given to the local authority and to the Approved Inspector (AI), if one is involved, before 6 April 2024; and
• the building control provider of the works, whether the local authority or an AI, must be suitably qualified and registered with the BSR within the respective time limits.

October 2023 and April 2024 deadlines

If your project had suitable building control arrangements established before 1 October 2023, and has made sufficient progress before 6 April 2024, it qualifies for transitional provisions. ‘Suitable building control arrangements’ (which must be in place before 1 October 2023) means submitting full plans to the local authority and the plans must not be rejected. Or it means giving an initial notice to the local authority and the authority must accept the notice. Cancellation, cessation or expiry of an initial notice after 1 October 2023 can cause the works to fall outside the transitional arrangements.

Notice of sufficient progress

In order to benefit from the transitional arrangements it is essential that you give notice to the relevant local authority before 6 April 2024, indicating that your building work has progressed sufficiently (as required for the type of works involved)¹. If your project involves an AI, ensure a copy of this notice is also provided to your AI. Failure to send this notice to the local authority will result in your HRB project transferring to the BSR. In the case of HRB works, you should give this notice within 5 working days of your works being regarded as sufficiently progressed, even where the works were sufficiently progressed before the regime start date of 1 October 2023. If the notice has not already been given as required, you should give the notice as soon as possible. It is important that notification of the meeting of this deadline on or before 5 April 2024 is given and is not disputed.

Sufficient progression of works

Sufficient progress for the construction of an HRB means when pouring concrete for the permanent placement of foundations or piling has started. For work on existing HRBs or for non-HRB works, sufficient progress means when any work has begun.

There is no specific rule for what counts as starting work, but it usually includes any significant building activity on site mentioned in the project application. Demolition of any previous building or works and other basic site preparation works are unlikely to constitute starting work.

Registration of building control providers

Under the transitional arrangements your project can continue to be regulated by your existing building control provider if your existing building control provider is appropriately qualified and registered with the BSR under the new scheme. Most building control providers must register in England before 6 April 2024, including those registering as a registered building control approver, which is likely to include many AIs. Individuals who are an existing building control professional and are registered as a Class 1 registered building inspector in England must also register by this date, but have a longer period of time for their competency to be assessed. Registration takes time and involves an assessment of competence.

Multi-building sites with HRBs

If your works relate to a multi-building development, only those “buildings” which are HRBs (see Guidance on the criteria for being a higher-risk building) which are sufficiently progressed and in respect of which notice to that effect has been received before 6 April 2024 will benefit from the transitional arrangements. This is to prevent developers avoiding the new HRB regime in respect of entire multi-building projects, by starting works on just one building.

Occupation phase requirements apply to all HRBs

Even if your HRB works fall within the transitional arrangements and do not transfer to the BSR or become subject to the new HRB regime during the construction phase, HRBs remains subject to the full occupation phase requirements and must be registered with the BSR before occupation can take place e.g. the accountable person/s (APs) and principal accountable person (PAP) for the HRB must be identified; the completion certificate must be provided to the BSR; the PAP must register the HRB with the BSR before occupation can take place; and all requirements for the ongoing occupational life of the HRB must be met, including compliance by the dutyholders, APs and PAP, with their occupational phase duties.

^{1 This notice is a requirement under the transitional regulations for HRB projects, but is not expressly stated in the relevant transitional regulations to be a requirement for non-HRB works. However, in the case of non-HRB works it is prudent to give notice to the relevant local authority and to the AI, if an AI is involved, that the works have started by 6 April 2024 for the purpose of notifying that this transitional requirement has been met.}