Building Safety Act 2022

Part 3: Building Act 1984

Building control authorities and building regulations

Section 31: Higher risk buildings etc

Effect 

281. The new regulatory regime will regulate "higher-risk buildings". This section inserts sections 120D to 120I into the Building Act 1984. Section 120D defines the "higher-risk buildings", which will be regulated during the design, construction and refurbishments phases of a building’s lifecycle by the new regime in England, as at least 18 metres in height or at least 7 storeys and of a description specified in regulations.
282. Section 120D gives the Secretary of State the powers, by regulations to define which descriptions of buildings are "higher-risk buildings" (subsection (2)(b)) and which descriptions of buildings are excluded from the definition of "higher-risk building" (powers used in the way described by (4)(c)). Regulations made under these powers are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament before they can be made.
283. Section 120D, at subsection (3), also gives the Secretary of State the power, by regulations, to supplement the definition for example, by defining "building" or "storey" or describing how the height of a building should be measured. Subsection (5) provides that the definition of "building" in regulations may include other structures, erections or movable objects. The ability to have a broad definition aligns with section 121 of the Building Act 1984. Regulations made under this power are subject to the negative resolution procedure.
284. Section 120D gives the Secretary of State the power to amend section 120D apart from subsections (1), (3) and (6). This power could be used, for example, to amend the height criteria for the definition of "higher-risk building". Regulations made under this power are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament, before they can be made.
285. When making regulations to amend the definition of "higher-risk building", this can be done by reference to a building’s size, design, use, purpose or other characteristic (section 120A of the Building Act 1984, inserted by paragraph 77 of Schedule 5 to this Act).
286. Section 120E stipulates that the Secretary of State must consult the Building Safety Regulator and any other appropriate persons before making regulations under section 120D. The Secretary of State does not need to consult the Building Safety Regulator if they have received a recommendation or requested advice from the Regulator.
287. Section 120F further stipulates that when the Secretary of State proposes to make regulations which would result in a description of building being added to the definition of "higher-risk building", and therefore subject to the new design and construction regulatory regime for higher-risk buildings, they must have received a recommendation from the Regulator to that effect, or asked the regulator for advice, and they must undertake and publish a cost benefit analysis. If the costs or benefits cannot be reasonably or practicably estimated, then the Secretary of State must provide an explanation of this.
288. Section 120H sets out what the Regulator must do if the Secretary of State asks it for advice about the definition of "higher-risk building". The Building Safety Regulator is obliged to provide such advice on request.
289. If the Building Safety Regulator is asked to provide advice on whether a new description of building should be added to the definition of "higher-risk building", it must consider whether the conditions at subsection (2) (a) - (c) of this section are met. The conditions are: the Building Safety Regulator must be of the view that building safety risks in the type of building in question are higher than in buildings in general, that if the prescribed building safety risks arose in the type of building in question it could cause a major incident (serious injury or death to a significant number of people) and that the Regulator considers it appropriate for the regulatory regime to apply.
290. If the Building Safety Regulator considers the conditions are met, it must recommend to the Secretary of State that the new description of building is added to the definition of "higher-risk building" and provide a statement of the issues it considered alongside the recommendation.
291. If the Building Safety Regulator considered the conditions are not met, they must provide advice that the new description of building should not be added to the definition of "higher-risk building" and provide a statement of the issues it considered.
292. Section 120H also sets out that the Building Safety Regulator must provide advice as to whether a description of building should be removed from the definition of "higher-risk building", if the Secretary of State requests it.
293. Section 120G provides that the Building Safety Regulator must recommend to the Secretary of State that a particular description of building should be subject to regulation under the regime if the conditions at subsection (1) (a) - (c) of this section are met. These are the same conditions as specified in section 120H. In making such a recommendation under section 120G, the Building Safety Regulator must provide the Secretary of State with a statement of the issues considered.
294. Under section 120G (4), the Building Safety Regulator may also recommend the removal of a description of higher-risk building from the regulatory regime.
295. If the Secretary of State chooses not to follow a recommendation of the Building Safety Regulator, then sections 120G and 120H specify that they must publish a document which sets out the regulator’s recommendation, the Secretary of State’s decision not to follow the recommendation, and the reasons for that decision.

Effect in Wales

296. Section 120I confers power on the Welsh Ministers to define "higher-risk building" in Wales, and defines "higher-risk building work" which includes circumstances where work causes a building to become a higher-risk building or to cease to be a higher-risk building. It also provides a power to define "building" to ensure that the Welsh Ministers can add clarity to the definition of "higher-risk building" as required; this mirrors the equivalent provision for the Secretary of State in England, in section 120D(4)(a) and (5).

Proposed use of power 

297. At the start of the new regulatory regime, it is proposed to supplement the definition of "higher-risk building" for England.

Background 

298. This is a new provision.
299. The Independent Review identified that it is important to ensure that the Government can respond quickly in the future, where necessary, to amend the definition of "higher-risk building" in light of either critical new information emerging or experience of operating the new regime.
300. Following pre-legislative scrutiny, the Housing, Communities and Local Government Committee recommended including the definition of "higher-risk building" within the Act, rather than in regulations.

     Example The following example is purely hypothetical. After the new design and construction regime has been operating for two years, the Secretary of State may decide that consideration is needed as to whether single storey premises in areas of high flood risk should be higher-risk buildings because of a concern about structural failure following recent flooding incidents. If the Secretary of State came to this view, they must request advice from the Building Safety Regulator. The Building Safety Regulator must consider whether single storey premises in areas of high flood risk meet the three conditions specified in this section 120H(2). In this hypothetical example, the Regulator considers the conditions are met. The Regulator must then make a recommendation to the Secretary of State to amend the definition of a "higher-risk building" and provide a statement of the issues it considered in coming to that recommendation. Having considered the recommendation, the Secretary of State may be minded to agree and make regulations to amend the definition of "higher-risk buildings". They must then consult other appropriate persons and undertake a cost benefit analysis, if they have not already done so whilst requesting advice from the Regulator. Having considered the recommendation, the representations made and the cost benefit analysis, the Secretary of State will decide whether to amend the definition of "higher-risk building". If the Secretary of State chooses to make the amendment, the regulations will be laid in Parliament using the affirmative procedure. If the Secretary of State chooses not to make the amendment, then the Secretary of State must publish a document setting out the Regulator’s recommendation, their decision not to implement it and the reasons for their decision.

Section 32: Building control authorities

Effect

301. This section amends section 91 of, and inserts new sections 91ZA, 91ZB, 91ZC and 121A into, the Building Act 1984 to set out, for England, the arrangements where the Building Safety Regulator is the building control authority, and to define higher risk building work (see below as to Wales).
302. The amendments to section 91 for England make clear that for buildings or building work where the Building Safety Regulator is the building control authority, the local authority is no longer responsible for acting as the building control authority for enforcing the requirements of building regulations in respect of those buildings or that building work.
303. Section 91ZA(1) provides that, in England, the Building Safety Regulator is the building control authority for work on higher-risk buildings, or for work on buildings which are to be higher-risk buildings, (higher-risk building work). Therefore, it is responsible for supervising building work and enforcing compliance with building regulations’ requirements for those buildings.
304. Section 91ZA(2) provides that, in England, the Building Safety Regulator is the building control authority in situations where a non-higher risk building becomes one as a result of building work being undertaken, or where a higher-risk building ceases to be one as a result of building work. Section 91ZA(3) defines (for England) building work for which the Building Safety Regulator is the building control authority as higher-risk building work.
305. Section 91ZB enables, in England, the person undertaking the work to issue a notice to the relevant local authority in agreement with the Building Safety Regulator, so that the Building Safety Regulator is the building control authority for building work on a non-higher risk building (called a "regulator’s notice"). A regulator’s notice can only be issued provided that neither a building control application has already been made to a local authority nor an initial notice nor a public body’s notice has already been issued (subsection (3)).
306. Section 91ZC makes supplemental provision to section 91ZB. In particular, subsections (2) – (4) provide that regulators’ notices can be rejected only on grounds prescribed in building regulations; that a notice of rejection must be issued within a prescribed period, otherwise the regulator’s notice is treated as being accepted; and that rejection of a regulator’s notice may be appealed. Subsection (5) allows for building regulations to prescribe the form and content of a regulator’s notice and the way in which it is to be issued.
307. This section also inserts new section 121A(1) into the Building Act 1984 to make clear that, in England, the Building Safety Regulator is the building control authority where sections 91ZA and 91ZB provide for this to be the case, otherwise the building control authority will be a local authority. The definition of a building control authority being either the Building Safety Regulator or a local authority is the definition used for all of the new references to "building control authority" being inserted into the Building Act 1984.
308. Schedule 5 makes consequential amendments to the Building Act 1984.

Effect in Wales

309. This section also applies to Wales and inserts new sections 91ZD and 121A into the Building Act 1984.
310. The insertion of section 91ZD for Wales provides a power for the Welsh Ministers, in building regulations, to designate an alternative local authority to act as building control authority where the local authority for the area proposes to carry out higher-risk building work. This is to avoid the risk of a conflict of interest where the local authority would otherwise be both developer and regulator on a higher-risk building.
311. New section 121A defines building control authorities and local authority for the purpose of the definition of building control authority in 121A(1), to confirm that the designated local authority is the building control authority for work in relation to which it has been designated.

Background

312. Section 91 of the Building Act 1984 places a duty on the local authority to execute the Act and enforce building regulations’ requirements in its area.
313. In England, to avoid duplication of regulation, the Building Safety Regulator will be responsible for all building regulations matters when building work is undertaken on higher-risk buildings (not just fire and structural safety matters). Therefore, it will be the building control authority for all building work on higher-risk buildings, or for work which leads to a building becoming a higher-risk building, for instance through the addition of extra storeys to an existing building or ceasing to be a higher-risk building with the removal of storeys from the building or change of use.
314. Also, there will be multi-building sites in England comprising both higher-risk buildings and non-higher-risk buildings. Although the Building Safety Regulator will automatically be the regulator for the higher-risk building, a local authority or registered building control approver would normally be the building control body for the non-higher risk building.
315. The developer may prefer to deal with one body for the whole site. Given that neither a local authority nor a registered building control approver can undertake building control for the higher-risk building, this would mean the developer would choose the Building Safety Regulator to be responsible for providing building control for the whole site.
316. The regulator’s notice provides the mechanism for doing this in England.
317. Section 91 of the Building Act 1984 applies equally to Wales.
318. In Wales the local authority for the area, or as designated by Welsh Ministers under building regulations, will be responsible for all building regulations matters when building work is undertaken on higher-risk buildings including similarly for work which leads to a building becoming or ceasing to be a higher-risk building.
319. For multi-building sites in Wales comprising both higher-risk buildings and non-higher-risk buildings although the developer may choose either a local authority or registered building control approver as the building control body for the non-higher risk building, the developer may choose to utilise the designated local authority for the whole site.

     Example If a developer ("the relevant person") wishes the Building Safety Regulator to act as the building control authority for a multi-building site including both higher-risk buildings and non-higher risk buildings, they can seek the Building Safety Regulator’s agreement to issuing, jointly, a regulator’s notice. The Building Safety Regulator has to agree to undertake the building control function for non-higher risk buildings. If they do not, building control would be the responsibility of the local authority or a registered building control approver. A regulator’s notice can be issued only for sites where there is a higher-risk building and where work involves work on the higher-risk building. It is envisaged that the local authority would have very limited grounds for rejecting a regulator’s notice on procedural grounds (for instance incorrect information has been supplied) and this would need to be done within a period prescribed in regulations. Where the Building Safety Regulator is acting as the building control authority for a non-higher risk building, it will operate the same building control functions for the non-higher risk building as would a local authority where plans have been deposited. Once work on a non-higher risk building has completed, the Building Safety Regulator will issue a completion certificate as provided for under building regulations. The regulator’s notice still has effect in respect of that work, i.e. a local authority cannot take enforcement action in respect of that work at a later date. A new regulator’s notice will be needed for any future building work on the non-higher risk building, or, alternatively, it would be open for the person undertaking the work to use the local authority or a registered building control approver for building control.

Section 33: Building regulations

Effect

320. This section inserts new provisions into Schedule 1 to the Building Act 1984 to provide powers for building regulations to set:
     • procedural requirements relating to building control and the issue of notices and certificates (new paragraph 1A);
     • procedures relating to applications for building control approval, and for requirements to be imposed on approvals (new paragraph 1B);
     • approval of schemes whose members can issue certificates, and provision about those certificates and schemes including insurance (new paragraph 1C);
     • requirements on giving, obtaining or keeping of information or documents (new paragraph 1D);
     • requirements for the establishing of a system relating to mandatory occurrence reporting (new paragraph 1E);
     • the form and content of documents and information to be provided with building control applications (new paragraph 1F);
     • inspection and testing (new paragraph 1G);
     • powers for building control authorities to extend prescribed timescales for deciding applications with the agreement of the applicant (new paragraph 1H); and
     • rights to appeal decisions, appeal requirements and procedures (1I).

321. The Building Safety Regulator will be the building control authority for higher-risk buildings and buildings covered by a regulator’s notice in England (see section 32), new sections 91ZA and 91ZB), and local authorities will be the building control authority for other buildings; in some cases the building control authority in Wales will be a designated local authority, rather than the local authority for the area in question (see section 32, new section 91ZD).
322. The new regulatory regime will introduce procedures and requirements for new higher-risk buildings as they are designed and built, and for building work carried out on them. Proposals for new higher-risk buildings will go through a gateway process, and proposals for building work on existing higher-risk buildings will go through a refurbishment process, each of which will be laid out in building regulations.
323. Procedures similar to the current building control routes will continue to be available for buildings not in scope of the more stringent regime where a local authority is the building control authority, namely deposit of plans or issue of a building notice. Procedures for these are currently set out in Part 3 of the Building Regulations 2010 as amended. This section will provide the powers to make changes to these existing requirements, including the information to be provided, consultation with fire and rescue authorities and sewerage undertakers, building control approvals, including with requirements, notification of when stages of work commence, and issue of completion certificates when work has completed.
324. Schedule 5 makes consequential repeals and amendments to relevant provisions in the Building Act 1984.

Effect in Wales

325. This section will apply equally in Wales with the exception that rights of appeal are to the Welsh Ministers or a magistrates’ court or in some cases to the High Court.

Proposed use of powers

326. New paragraph 1A provides that building regulations may make provision about requirements for applications to building control authorities; the giving of notices and certificates; consultation arrangements; for building control authorities to be notified of specified matters; when applications can be deemed to be accepted or refused; and the effect of grants of applications and of certificates.
327. Regulations under paragraph 1B will make provision for prescribed documents to be submitted with an application for building control approval, and also provide building control authorities with the ability to set requirements when granting applications for building control approval, such as requiring the submission of revised versions of documents, setting out that work cannot proceed beyond a certain stage without further approvals, and requiring applications for the approval of changes which occur during construction. Building control applications for refurbishment of higher-risk buildings will require plans and prescribed documents proportionate to the proposed refurbishment. Paragraph 1B(5) enables building regulations to set out the requirements for building control applications for the refurbishment of higher-risk buildings in England. Building control authorities will have the ability to request further information and refuse applications where the applicant fails to provide these. Taken together, the powers in paragraphs 1A and 1B will be used to set out in building regulations the procedures for gateways and refurbishment routes for building control approval in higher-risk buildings including the prescribed documents to be submitted with an application, staged approvals, and change control requirements.
328. New paragraph 1C makes provision for building regulations to set out procedures for the approval of schemes for persons who can provide certificates as evidence that work complies with building regulations requirements; the suspension or withdrawal of scheme approvals, the time periods for approvals; and arrangements for any prescribed insurance cover which members of schemes must hold, including that cover is provided by a scheme approved by the appropriate national authority (the Secretary of State in England and Welsh Ministers in Wales). For example, regulations might also set out the types of work for which certificates can be provided and the procedure for notifying building control authorities of work covered by certificates, as in the current Building Regulations. It is envisaged that a set of conditions of approval will be published which schemes must meet to be approved. These will be used as the basis for ongoing audit of schemes which will be necessary in order to maintain approvals.
329. New paragraph 1D will enable building regulations to set out the information and documents that must be obtained and kept, and the standards to which these documents and information must be stored and maintained. In England it is proposed to use this power to require those designing and constructing higher-risk buildings to develop a golden thread of information to prescribed standards. These prescribed standards are to ensure the information is accessible, accurate, up to date, transferable, secure and has longevity. For example, building information such as plans and prescribed documents submitted at Gateways two and three will need to be stored in the golden thread in a way that meets the prescribed standards. Regulations under this provision may give building control authorities or other prescribed persons the power to require documents and information to be shared with them in certain circumstances. Building regulations under this section will define the prescribed circumstances where information must be shared and the prescribed persons it must be shared with in these circumstances.
330. Dutyholders will also be required to report information about safety incidents taking place during building work as part of mandatory occurrence reporting. The safety related incidents amounting to reportable occurrences will be prescribed in secondary legislation. Paragraph 1D gives the power to require reporting and the power to limit the admissibility of information acquired through such reporting in criminal proceedings, equivalent to the limitations set out in section 89(6). Paragraph 1E contains the power to require mandatory occurrence reporting frameworks to be established and operated by dutyholders. Regulations will require establishment and operation of a framework, according to prescribed requirements, that will enable workers on-site to report potential occurrences. In England, Principal Designers and Principal Contractors will be required to use this information to report structural and fire safety occurrences which could cause a significant risk to life safety in higher-risk buildings to the Building Safety Regulator.
331. In England it is proposed to require prescribed documents such as a fire and emergency file and construction control plan with certain building control applications for higher-risk buildings using powers in paragraph 1B. Where building regulations provide that any document or information may or must be given, the powers in new paragraph 1F will be used to prescribe the form and content of such documents, the information and other documents that must accompany it, and the way that it is given. This ensures consistency and quality standards. It is linked to paragraph 1D which contains powers to require that the information and documents created and managed by dutyholders to support building safety must meet prescribed standards. Subparagraph (3) allows building regulations to specify that some documents must be given in accordance with a published direction; so, for example, building regulations might prescribe that Gateway two applications in England must be given to the Building Safety Regulator in accordance with a direction published by the Regulator; and the Building Safety Regulator might publish a direction saying that these applications should be submitted through an online portal. New paragraph 1F(4) gives the power to set out in building regulations the prescribed documents that must be submitted with certain prescribed applications. In England, the intention is that the prescribed applications will be certain applications for the refurbishment of higher-risk buildings. Further information or documents can be required by the building control authority. It also sets out that such applications can be refused if a prescribed document is not provided to the building control authority on request.
332. When checking work, building control authorities may need to undertake tests or take samples of building materials. It is proposed to use the powers in new paragraph 1G to make provision in building regulations relating to the testing and sampling of work or the building, prohibit the covering up of work within a prescribed time period after a specified event, and allow for the cutting into, laying open of the work or building, or for the pulling down of work in order to test or sample it. For example, in order to check compliance a building control authority may specify that foundations should not be covered over for a period of time, to enable the depth of the foundations to be checked; or may wish to check that cavity barriers have been installed properly before the external cladding is installed, and they are covered up.
333. Building regulations will set prescribed timescales within which building control authorities will need to determine applications for building control approval and other applications. There will be projects where it will not be possible to review all the documents and make a decision within the prescribed timescale. Paragraph 1H will allow provision to be made for the building control authority, with the agreement of the applicant, to extend the period within which the application must be determined. In England it is proposed to use this power to provide for prescribed timescales for the following applications: Gateway two, change control, Gateway three and refurbishment of higher-risk buildings.
334. New paragraph 1I will enable persons directly impacted by decisions of building control authorities under building regulations to appeal such decisions. For example, where the Building Safety Regulator refuses a building control application for a higher-risk building such as at Gateway two, change control, Gateway three and refurbishment, there will need to be a route of appeal.

Background

335. The Independent Review made several recommendations for stringent new building control procedures to increase regulatory oversight of the design and construction of higher-risk buildings and of building work subsequently carried out on them. It identified the importance of persons responsible for building safety having access to accurate and up to date information and concluded that a "golden thread" of good quality information would ensure effective building safety management throughout a building’s lifecycle.
336. It also recommended that dutyholders across the building’s lifecycle be required to report safety concerns to the Building Safety Regulator as part of a mandatory occurrence reporting regime.
337. Section 16 of the Building Act 1984 sets out general provision for the deposit of plans of proposed building work with local authorities. Specific regulations on procedural matters are in Part 3 of the Building Regulations 2010. These provisions are considered to be insufficient to implement the tightened controls needed for higher-risk buildings and so new provisions will be made in regulations for gateways and refurbishment procedures using the powers provided in section 32.
338. Building regulations currently also set requirements for notices to be given to local authorities.
339. Sections 16 and 17 of the Building Act 1984 allow the Secretary of State to approve persons who can issue a certificate that work complies with building regulations, and as a consequence have protection from formal enforcement action by the local authority (although no persons have been approved under this power).
340. Some lower risk building work can be certified as complying with relevant building regulations requirements if the person undertaking the work is a member of a competent person scheme, and a local authority can accept the certificate as evidence of compliance. Schemes are authorised by the Secretary of State and are listed in Schedule 3 of the Building Regulations 2010.

     Example: Golden thread of information An architect has designed a residential tower block that will be 25 metres high. The architect’s plans for the building form part of the information that will be required by the Building Safety Regulator at gateway two. This information will therefore need to be stored in the golden thread and meet the golden thread standards Example: Mandatory occurrence reporting During the construction of a residential tower block, a worker identifies compatibility issues between the insulation and intumescent sealant being installed around copper piping on-site. In the event of a fire, the expanding sealant would deform the insulation and potentially compromise compartmentation. The incompatibility was not spotted during design or during standard internal reviews, and the two products have been installed together numerous times on-site. This presents a systemic and significant risk to life safety. The worker reports this to the Principal Designer and Principal Contractor who immediately inform the Building Safety Regulator that a mandatory occurrence has been identified. The Principal Contractor and Principal Designer then ensure that a full report is submitted to the Building Safety Regulator as soon as is practicable and no later than ten days from the occurrence being identified. Upon receiving the report, the Building Safety Regulator can use the intelligence within to identify any trends of similar such incidents across the sector and share this and other valuable lessons learned within the report with industry. In this way the report enables the Building Safety Regulator to help professionals across the sector proactively identify and resolve similar issues on their own sites, mitigating previously unknown risks and improving best practices across the built environment. The Building Safety Regulator can also, at its own discretion, use such a report as a basis for further investigative or enforcement action.

Section 34: Dutyholders and general duties

Effect

341. This section amends Schedule 1 to the Building Act 1984, by the addition of paragraph 5A, appointed persons, and paragraph 5B, general duties. The new regulatory regime will regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment of existing buildings.
342. This section creates a power in paragraph 5A to require appointments to be made in relation to any work under building regulations, to make provisions about the nature of the appointment (including the appointer, the appointee and the term of the appointment), and determine situations where an appointment is deemed to have been made.
343. This section also creates a power in paragraph 5B to impose duties on relevant persons throughout the design and construction phase of a building project. These dutyholders include those commissioning or undertaking work as well as those appointed, controlling or managing the work.
344. The provisions in this section will replace an existing power in paragraph 4B of Schedule 1 to the Building Act 1984, inserted by the Sustainable and Secure Buildings Act 2004, which provides powers for building regulations to make provision with regard to appointed persons, and paragraph 4B will be repealed as a consequence (see Schedule 5 consequential amendments).

Effect in Wales

345. This section will apply equally in Wales. Welsh Ministers intend to set out in secondary legislation requirements for principal dutyholders.

Proposed use of this power

346. The power provided by this section, which is amending Schedule 1 to the Building Act 1984, will enable regulations to be made setting out the appointments required when building regulations apply, and the duties which will be imposed. This will include requirements for dutyholders to cooperate and share information and to ensure compliance with building regulations.
347. In England, the Government intends to use the powers in paragraphs 5A and 5B to provide that the client can treat those persons appointed as a Principal Contractor or Principal Designer under the Construction (Design and Management) Regulations 2015 (CDM) as appointed for the purposes of the building regulations. In order to do this, it is proposed that the client should certify that the CDM person has the appropriate skills, knowledge, experience and behaviours to undertake the equivalent role under the building regulations.

Background

348. This is a new provision, which will amend Schedule 1 to the Building Act 1984. Schedule 1 sets out the provision that may be made in building regulations, including detailing what should be done by whom.
349. The Independent Review identified dutyholders (including the Client, and the Principal Designer and the Principal Contractor appointed under CDM 2015) who should be held accountable for building safety during the design and construction phase. CDM 2015 defines these dutyholders and imposes duties on them including appointing the right people for the work and having suitable arrangements to ensure the project is carried out in a way that secures health and safety.
350. Regulations made under this provision in England will ensure that when buildings are designed, constructed or refurbished, all dutyholders, including existing dutyholders identified in CDM 2015, will have formal responsibilities for compliance with building regulations.

Section 35: Industry competence

Effect

351. This Section amends the Building Act 1984, creating powers to prescribe in building regulations competence requirements relating to the Principal Designer and Principal Contractor (appointed persons), and any prescribed person. Building regulations may also impose duties on the person appointing the Principal Designer, Principal Contractor and any prescribed person to ensure that those they appoint meet the competence requirements. These requirements will apply to design or building work on all buildings.
352. The Principal Designer, Principal Contractor, designers and contractors can be an organisation or an individual. Sub-paragraph (2) makes clear that the competence requirements can apply to both organisations and individuals. For individuals, the competence requirements will relate to their skills, knowledge, experience and behaviours. For organisations, the competence requirements will relate to the organisational capability – the ability of an organisation to carry out its functions under the building regulations properly. This may include having appropriate management systems, processes and policies to carry out its functions, and having the capability to ensure that its staff have the appropriate skills, knowledge, experience and behaviours.
353. Where the Principal Designer or the Principal Contractor are organisations, subsection (3) enables building regulations to impose requirements on these organisations to ensure that the individuals leading or managing the work have the appropriate skills, knowledge, experience and behaviours to manage, on behalf of the organisation, their functions as the Principal Designer or the Principal Contractor.

Effect in Wales

354. This section will apply equally in Wales with the same expectations of skills, knowledge, experience and behaviours relevant to the work in question.

Proposed use of this power

355. The intention for this provision is to ensure that everyone doing design work or building work is competent to do their work in a way that is compliant with building regulations. For any design or building work on all buildings in England, it is intended that building regulations set out these duties:
     • The Principal Designer and Principal Contractor (appointed persons) must have the appropriate skills, knowledge, experience and behaviours and, if they are an organisation, the organisational capability, to carry out their duties specified in building regulations in a way that is compliant with building regulations. They may not accept an appointment unless they fulfil these conditions.
     • Anyone who participates in or manages the work must have the appropriate skills, knowledge, experience and behaviours, and if they are an organisation, the organisational capability to carry out work in a way that is compliant with building regulations. If a person does not have the appropriate skills, knowledge, experience and behaviours, they must be in the process of obtaining it, and must be appropriately supervised. The latter option is needed to cover individuals in training and apprentices etc.
     • Anyone who appoints organisations or individuals to carry out design work or building work must take reasonable steps to ensure that those they appoint meet the competence requirements for their roles.
     • For higher-risk buildings, the competence requirements for the Principal Designer, Principal Contractor, and those carrying out design or building work must be appropriate to the particular higher-risk building in question.

356. These duties will apply to any design or building work on all buildings in England, whether or not the work is higher-risk building work. This includes any design or building work carried out during occupation.
357. In England, the Government intends to provide statutory guidance to support these requirements. In the first instance guidance will be issued for higher-risk buildings, with wider competence guidance to follow later. The guidance will provide examples of the skills, knowledge, experience and behaviours and organisational capability required to work on higher-risk buildings, in particular, for the Principal Designer and Principal Contractor. The guidance may make references to the competence standards being developed by British Standards Institution (BSI) for these roles. Over time, it is expected that the built environment industry will develop sector-specific competence frameworks, which could, if sufficiently rigorous, be recommended and adopted in statutory guidance. It is expected that the competence committee (see section 10) will advise on this point.

Related provisions

358. Section 33 provides powers (in new paragraphs 1B and 1F of Schedule 1 to the Building Act 1984) for Building Regulations to prescribe documents to be supplied with building control applications in England. This will include as part of the Gateway two application, a signed declaration from the Client that they are content with the competence of the Principal Designer and Principal Contractor, and the evidence of the Client’s assessment process for the competence of the Principal Designer and Principal Contractor.

Background

359. Building regulations do not currently make any particular provision relating to competence of persons carrying out building work. Regulation 7(1)(b) provides that "building work shall be carried out in a workmanlike manner", but this is focused on the quality of the work rather than the competence of the person doing it. Approved Document 7 provides some guidance on meeting the requirement in regulation 7(1)(b).
360. The Construction, Design and Management (CDM) Regulations 2015 include general duties in relation to the competence of designers (including Principal Designers) and contractors (including Principal Contractors). There are also duties on contractors to ensure the competence of those they appoint to work on construction sites. These duties focus on ensuring good management of health, safety and welfare when carrying out construction projects rather than on the safety and quality of buildings, and do not have specific provisions relating to higher-risk buildings.
361. The new provisions will impose general duties in relation to competence of persons carrying out any work on all buildings to ensure compliance with building regulations.

     Example The Client intends to commission an eight-storey residential building and appoints a Principal Designer to lead on the design work. Prior to the appointment, the Client must assess that the nominated Principal Designer has the appropriate skills, knowledge, experience and behaviours and organisational capability to carry out their duties under building regulations in relation to the specific higher-risk building. In making this assessment, the Client considers statutory guidance which provides examples of the skills, knowledge, experience and behaviours and organisational capability required to work on higher-risk buildings. The Client decides to appoint a company which demonstrates the organisational capability and ensures that the individual nominated by the company to manage its functions as the Principal Designer has the relevant skills, knowledge, experience and behaviours for the particular building, as explained in guidance. This may be demonstrated by, for example, being assessed by an accredited organisation as meeting the competence standards for the Principal Designer and having relevant experience working on the same type of buildings. The Principal Designer must also make sure that anyone they appoint to carry out design work is competent for their role. Once the design stage is completed, the Client then procures for the construction of the building. Before appointing a Principal Contractor, the Client must assess that the nominated Principal Contractor has the appropriate skills, knowledge, experience, behaviours and organisational capability to carry out their duties under building regulations in relation to the specific building. Similarly, the Client considers statutory guidance and appoints a company which demonstrates the organisational capability, and ensures that the individual nominated by the company to manage its functions as the Principal Contractor has the relevant skills, knowledge, experience and behaviours for the particular building, and has met the competence standard for the Principal Contractor, as explained in guidance. During construction, the Principal Contractor must make sure that anyone they appoint to carry out building work is competent for their role or is being trained and appropriately supervised by a competent supervisor.

Section 36: Lapse of building control approval etc

Effect

362. This section inserts a new section 32 into the Building Act 1984 which provides for building control approvals to lapse automatically after three years in respect of any buildings in which work has not commenced. New section 32(5) ensures that certain things which the person carrying out the work had to do when they made their original application, for instance to pay a fee or supply certain information, are not undone.
363. This section also inserts a new section 53A into the Act which makes provision for initial notices and plans certificates to lapse after three years. A new paragraph 4A is inserted into Schedule 4 to the Building Act 1984 to provide for a public body’s notice and public body’s plans certificate to lapse after three years.
364. Consequential amendments are made to the Building Act 1984, in particular section 47(4) is amended so that it is subject to new section 53A. Consequently, the provisions of section 53 relating to an initial notice ceasing to have effect do not apply if an initial notice lapses under section 53A.
365. Provision in new subsections 32(6), 53A(6) and paragraph 4A(6) inserted by this section allows building regulations to define when work commences for the purposes of lapse of approval.

Effect in Wales

366. This section will apply equally in Wales.

Background

367. Section 32 of the Building Act 1984 currently provides a power for a local authority to issue a notice declaring that its approval of the plans for that work has no effect, if work has not commenced within three years of the plans being deposited.
368. Section 52(5) of the Building Act 1984 currently provides a power for a local authority to cancel an initial notice if work has not commenced within three years of the notice being issued, and section 50(8) provides a power for a local authority to rescind acceptance of a plans certificate if work has not started within three years of the certificate being issued. Similar provision is made for a public body’s plans certificate in paragraph 2(6) of Schedule 4 to the Building Act 1984.

     Example Building control approvals, initial notices, plans certificates, and public body’s notices and plans certificates, will lapse automatically rather than requiring a local authority to take proactive action to declare that approval has no effect, or to cancel the notice. This is in line with the arrangements in planning legislation where planning permission lapses automatically after three years if work on the development has not started. Also, if work has not started on an individual building on a multi building site within three years, the building control approval in respect of that building will lapse, even if work on the remainder of the site has commenced.

Section 37: Determination of certain applications by Secretary of State or Welsh Ministers

Effect

369. This section provides that where the building control authority fails to make a decision on a prescribed application for higher-risk buildings within prescribed timescales, and there is no agreement with the applicant to extend the timescale, applicants can apply to the appropriate national authority for a decision on the original application within a prescribed time period. The building control authority will not be able to continue determining the original application once an application has been made to the appropriate national authority for a decision in these cases. In England, the building control authority for higher-risk buildings will be the Building Safety Regulator and the appropriate national authority will be the Secretary of State (see below as regards Wales).
370. The appropriate national authority can appoint a person to determine these applications. Provisions will be made in building regulations for a person appointed to be able to determine the original application, including conferring functions on them and on the effect of their decisions. The appropriate national authority, and any appointed person, will have the powers of the building control authority to determine the original application with the Building Act 1984 and building regulations applying to them as they apply to the building control authority. They may for example impose requirements on approval of an application using powers under building regulations made under section 33 of this Act.
371. Subsection (5) provides powers to make provision about these applications in building regulations. General procedural matters with regard to these applications will be set out in building regulations, for example prescribing the categories of applications that can use this procedure, prescribing the time period within which these applications must be made, the procedures for making an application, for determining an application, and specifying the form and content of documents. Building regulations can also place requirements on applicants and impose duties on the building control authority in relation to these cases, such as requiring applicants to notify the building control authority when they submit an application to the appropriate national authority and requiring the building control authority to provide relevant documents to the appropriate national authority.
372. Applicants in England will be able to appeal decisions of the Secretary of State to the First-tier Tribunal.

Effect in Wales

373. In Wales, failure by the building control authority (being the local authority for the area or one designated by Welsh Ministers) to decide an application for a higher risk building will allow an application to Welsh Ministers for a decision on the application.
374. Applicants in Wales will be able to appeal decisions of the Welsh Ministers to a magistrates’ court.

Proposed use of power

375. In England, it is intended to use the power in section 37 to provide for the following applications to be determined by the Secretary of State, if the Building Safety Regulator does not take a decision in time: Gateway two, change control, Gateway three, and refurbishment of higher-risk buildings.

Background

376. Currently developers can start building work when they have deposited plans and given the local authority notification of commencement or submitted a building notice. The new regime will require building control approval to be obtained before starting most kinds of building work on higher-risk buildings, and it will be an offence to undertake most higher-risk building work without first having building control approval. To minimise the risk of causing undue delays to construction, applicants will be able to apply to the appropriate national regulator for a decision in cases where the prescribed timescale for the building control authority to make a decision has passed with no extension agreed.

Section 38: Compliance and stop notices

Effect

377. Subsection (1) of this section enables the building control authority (i.e. the Building Safety Regulator or local authority) to issue compliance or stop notices where there is or is likely to be a contravention of building regulations by inserting new sections 35B to 35D into the 1984 Act.
378. A compliance notice (new section 35B) can be served on a person who is contravening, or is likely to contravene, building regulations or a requirement imposed under building regulations. This notice will require the person to remedy the contravention or to take the steps detailed in the notice within the specified period. This will be most useful in respect of non-safety related obligations outlined in building regulations, such as the provision of broadband.
379. Where work is being carried out that contravenes one or more particular provisions of building regulations that are specified in regulations for this purpose, where a compliance notice has not been complied with, or where work would present a risk of serious harm to people in or about the building if the building were used without the contravention being remedied, a stop notice (new section 35C) can be issued, to require a person to stop all work specified in the notice (which could be all work on that project). Once issued, it will take force immediately or from a date specified in the notice. The power to specify particular provisions of the building regulations is intended in England to enable the Building Safety Regulator to stop work immediately on sites where Gateway requirements have been breached. The Gateway requirements will be set out in building regulations made under new paragraphs 1A and 1B of Schedule 1 to the Building Act 1984, which are inserted by section 33 of this Act and relate only to higher-risk buildings.
380. In line with the existing enforcement protection in section 36(5) of the Building Act 1984, new section 35D(4) sets out that compliance notices and stop notices under section 35C(1)(a) cannot be issued where an application for building control approval in respect of non-higher risk building work has been granted by a building control authority and the contravention consists solely of carrying out the approved work etc. This protection does not apply to stop notices issued under new section 35C(1)(b) or (c). This is because, for subsection (1)(b), the protections would prevent a compliance notice being issued, so it could not be breached; and, for subsection (1)(c), the level of danger present ("the risk of serious harm condition") means that the protections are inappropriate.
381. These notices will be appealable to the First-tier Tribunal in England and the magistrates’ court in Wales (subsection (2), inserting new section 39A into the Building Act 1984). Appeal of a compliance notice will suspend the effect of the notice itself. Given the increased seriousness of the issues justifying the issue of a stop notice, an appeal against such a notice will not suspend its effect (although an application may be made to the First-tier Tribunal or magistrates’ court for the effect of a stop notice to be suspended pending appeal).
382. If the person issued with a compliance or stop notice breaches the notice, the building control authority will be able to prosecute for the breach. The offence of breaching a notice will be triable either way, reflecting not only the contravention of building regulations, but also that a formal opportunity to rectify it has been refused. If tried in a magistrates’ court, the offence will carry a maximum penalty of an unlimited fine and/or the maximum term of imprisonment permitted in a magistrates’ court, which is defined in section 126 of the Building Act (as amended by paragraph 81 of Schedule 5 to this Act) as 12 months (six months until the commencement of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020). If tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment.

Effect in Wales

383. In all situations, the power to issue and enforce stop and compliance notices will rest with the building control authority, being the local authority for the area or one designated by Welsh Ministers by virtue of regulations under new section 91ZD of the Building Act, inserted by section 32(3). Appeals against stop and compliance notices will be to a magistrates’ court in Wales.

Background

384. This section introduces new powers for building control authorities to enhance their ability to address non-compliance with building regulations without resorting to criminal prosecution.
385. Stop notices are being introduced as, before this Act, there was no power available to stop non-compliant building work from being continued or completed; the issue of such a notice will also avoid any nugatory further work being done on a non-compliant building by ensuring each stage is compliant before the next is done.
386. These measures have been modelled on notices under sections 21 and 22 of the Health and Safety at Work etc. Act 1974 and are intended to be used in similar circumstances.

     Example 1 During the construction of a higher-risk building in England, an authorised officer of the Building Safety Regulator notices that a non-compliant material is being used in construction, contrary to what has been specified in the full plans during the Gateway two process. The officer serves the person carrying out the work with a compliance notice, detailing the reason for non-compliance and the requirement to remedy this. Example 2 The Building Safety Regulator becomes aware of construction of a higher-risk building in England where the applicant has not received approval of their Gateway two application. The Building Safety Regulator can issue a stop notice under new section 35C(1)(a) of the Building Act 1984 to the Principal Contractor, requiring them to cease work immediately. Failure to comply with this notice will be a criminal offence. Example 3 A person carrying out refurbishment work has been issued with a compliance notice due to their fitting non-compliant cladding on the external walls of a building. The person has failed to comply with the compliance notice. The building control authority decides that the appropriate next step is to issue the person with a stop notice, ordering them to stop all work on site until the cladding is replaced. Non-compliance with the stop notice will be a criminal offence.

Section 39: Breach of building regulations

Effect 

387. Subsection (2) of this section replaces the existing summary-only, fine-only offence in section 35 of the Building Act 1984 (penalty for contravening building regulations), making it triable either way, and also providing for imprisonment as a possible sentencing option – for the maximum term of imprisonment permitted in a magistrates’ court, as defined in section 126 of the Building Act, as amended by paragraph 80 of Schedule 5 of this Act, i.e. 12 months (six months until the commencement of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020), or an unlimited fine. If tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment. The substituted version of section 35 also increases the maximum daily fine from £50 to level 1 on the standard scale (currently £200), reflecting inflation since 1984, when a Level 1 fine was £50.
388. In addition, new section 35(1) expands the existing offence of contravening building regulations so that it also covers requirements imposed under building regulations; for example, requirements imposed at the time of granting building control approval, such as provision of revised plans. Subsection (2) retains the existing power to exclude provisions of building regulations from the offence in section 35; the existing power has been used to make regulation 47 of the Building Regulations 2010. Subsection (3) provides for the building regulations to make provision for defences in relation to specific building regulations, to be used by persons whose circumstances meet the criteria of the defence to dispute a charge against them.
389. Subsection (3) of this section amends section 36 of the Building Act 1984 (notice requiring rectification of non-compliant work) to extend the time limit during which rectification in respect of a contravention of building regulations can be required from twelve months to 10 years.

Effect in Wales

390. This section will apply equally in Wales.

Proposed use of power

391. As part of the new building safety regime dutyholders will be required to report certain matters taking place during design and construction, as part of a mandatory occurrence reporting regime. The power created by new section 35(2) to the Building Act 1984 is intended to be used in England to create two defences in relation to these duties in secondary legislation:
     • A defence to the offence of failure to report where the person being prosecuted was not aware of the occurrence which gave rise to the requirement to report, so long as that person had taken all reasonable steps to be made aware, in sufficient time, of the occurrence. This will place the onus on the Principal Contractor and Principal Designer to take steps to become aware of occurrences happening on site.
     • The obligation to report will lie on both the Principal Contractor and Principal Designer. In order to avoid duplicate reports of occurrences, it will be a defence to the offence of failure to report within the prescribed period where the person being prosecuted reasonably believed that the other dutyholder (i.e. where the Principal Contractor is being prosecuted, then the Principal Designer, and vice versa) had already reported the occurrence.

Background 

392. Alongside section 38, this section provides stronger sanctions for use by building control authorities against those who seek to breach building regulations. This follows Dame Judith Hackitt’s finding in her foreword to the Independent Report that one of the key issues underpinning the failure of the Building Safety Regulatory system that led to the Grenfell Tower fire was that there was "Inadequate regulatory oversight and enforcement… Where enforcement is necessary, it is often not pursued. Where it is pursued, the penalties are so small as to be an ineffective deterrent".

     Example  The Building Safety Regulator may discover what it believes to be an instance of non-reporting and decide to prosecute a Principal Contractor on this basis. However, the Principal Contractor has evidence which suggests that he had reason to believe the Principal Designer had already reported the relevant occurrence. Such evidence could be used as a defence against the charge.

Section 40: Liability of officers of body corporate

Effect

393. This section inserts new section 112A into the Building Act 1984 which provides that, where a corporate body commits a criminal offence under that Act, any director, manager, secretary or other similar officer of that body is also deemed to have committed that offence in certain circumstances. Those circumstances are where the individual has consented to or connived in the commission of the offence or where the offence is attributable to any neglect on their part. Section 161 makes a similar provision in respect of the criminal offences in Parts 2 or 4 of this Act.

Effect in Wales

394. This section will apply equally in Wales.

Background

395. Many of those persons carrying out duties under the Building Act 1984 and the new regime are and will be corporate bodies rather than individuals. As a corporate body operates only by and through the actions of its employees, including managers and directors, if there is an offence by a body corporate, then there is likely also to be some measure of personal failure by one or more individuals, particularly those in a position to make critical decisions.
396. It will be appropriate to consider what evidence has been obtained against the company and the director or senior manager, taking into account the management arrangements. One purpose of bringing a prosecution under this section should be to bring home the importance of building safety responsibilities to those directing companies.
397. Where there is sufficient evidence and the public interest test is met, prosecutions could be brought against directors/managers as well as prosecuting the company for an offence under the relevant statutory provisions, even where there is a sole director. This would not be regarded as prosecuting the same person twice, as the two are separate legal entities. Should both matters result in a conviction, it will be for the sentencing court to sentence the individual(s) and the corporate body appropriately.
398. New section 112A has been modelled on section 37 of the Health and Safety at Work etc. Act 1974.

     Example If a subcontractor working on a project in the build phase decides to substitute agreed materials for inferior and noncompliant ones in order to increase their profit margin, the building control authority’s first response is likely to be to point out the problem and ask that it be rectified. If the inferior materials are not replaced with compliant ones, the building control authority could serve a compliance notice under new section 35B of the Building Act 1984, non-compliance with which would be an offence under new section 35B(4). If the subcontractor is a corporate body and there is evidence that a particular director or manager has made the decision not to replace the noncompliant material, that director or manager could be prosecuted as well as or instead of the corporate body and could be sentenced to imprisonment by the court.

Section 41: Revocation of certain provision made under section 2(2) of ECA 1972

Effect

399. This section provides powers for building regulations to revoke provisions in building regulations which were made using powers in section 2(2) of the European Communities Act 1972. In common with the usual procedure for building regulations, this will use the negative resolution procedure.
400. Section 41(1) treats building regulations made using powers in both the Building Act 1984 and s2(2) of the European Communities Act as a "combined instrument". Section 40(2) provides powers for building regulations to revoke provision in a combined instrument.
401. Section 41(3) also disapplies paragraphs 13 and 14 of Schedule 8 to the European Union (Withdrawal) Act 2018 in respect of any regulations which amend provision in a combined instrument. This will mean that any such regulations will be made using the negative resolution procedure rather than the affirmative procedure, and the publication in draft procedure will be disapplied.

Effect in Wales

402. Subsections (1) and (2) of this section apply in Wales. Paragraphs 13 and 14 of Schedule 8 to the European Union (Withdrawal) Act 2018 do not apply to statutory instruments made by the Welsh Ministers, so subsection (3) does not apply in Wales.

Background

403. Building regulations (specifically, the energy efficiency requirements in Part 6 and Part L of Schedule 1, and the broadband requirement in Part R of Schedule 1) have been used to implement provisions in EU legislation, particularly the Energy Performance of Buildings Directive (EPBD) and Article 8 of the Broadband Cost Reduction Directive.
404. The power to revoke these regulations in full was lost at the end of the implementation period, with the repeal of section 2(2) European Communities Act. Without the ability to revoke these provisions in building regulations, the Government would be constrained in its ability to update and improve the legislation, which could never be fully revoked, for instance in a consolidation exercise.
405. The European Union (Withdrawal) Act 2018 envisages that over time EU retained legislation will need to be amended or revoked, as it is replaced by new domestic legislation, and section 41 has been included for this purpose.
406. Paragraphs 13 and 14 of Schedule 8 to the EU Withdrawal Act set out procedure to be followed in legislation which amends or revokes certain retained EU law including that regulations should follow the affirmative procedure, and a requirement for pre-publication of the regulations.

     Example The building regulations will need to be updated in the light of the changes being made in the Building Safety Act. As part of this exercise, the Government will also be giving careful consideration to the merits of consolidating the significant number of amendments which have been made to the regulations in recent years. The ability to revoke the existing regulations and replace them with new regulations is necessary to enable this to be done. Without the power in subsection (2) of section 41, there would be an anomalous position, in that building regulations made under section 2(2) of the European Communities Act could not be included in any exercise to update and consolidate the building regulations and could never be revoked. The Government has consulted on proposals to introduce the Future Homes Standard and Future Buildings Standard to improve the energy efficiency and sustainability of new homes and buildings. This will require changes to building regulations including, potentially, those which implemented provisions in the EPBD; these changes may, in the absence of subsection (3) of section 41, engage the pre-publication and affirmative resolution procedure. The established procedure in the Building Act 1984 is for changes to building regulations, including the energy efficiency requirements, to be made following the negative resolution procedure.

Building control approvers and building inspectors

Section 42: Regulation of building control profession

Effect

407. This section amends the Building Act 1984 by inserting a new Part 2A into the Act which provides for the registration of building inspectors and building control approvers. The overall purpose of Part 2A is to improve competence levels and accountability in the building control sector by creating a unified professional and regulatory structure for building control, changing and modernising the existing legislative framework. The Building Safety Regulator will also assist and encourage building inspectors under its duty in section 6(2).
408. In future, the Building Safety Regulator and each local authority (to be collectively known as building control authorities, as defined in section 32) and each registered building control approver will be required, before exercising specified building control functions in relation to a building project (such as approving plans or submitting an initial notice), to obtain and consider advice from a registered building inspector. They will also be required to use a registered building inspector to carry out restricted activities (such as building control inspections).
409. Individuals in both the private and public sector who wish to be registered building inspectors must in the future meet the same minimum standard criteria to be placed on the register. Registered building inspectors will be able to provide advice to the building control authorities or registered building control approvers, in line with the type of registration they hold. Current "Approved Inspectors" (i.e. organisations) wishing to undertake building control work will also have to meet minimum criteria to become registered as building control approvers, becoming subject to the oversight of the regulatory authority (the Building Safety Regulator in relation to England, and the Welsh Ministers in relation to Wales). Local authorities are not being required to register as they are the default building control authority in an area and are already subject to intervention powers (including the Secretary of State having the power to transfer their building control functions to another local authority or to the Secretary of State) where they are failing (see section 116 of the Building Act 1984, as amended by section 45).
410. Local authority (or Building Safety Regulator) employees who are currently building inspectors may wish to formally register as a "registered building inspector". The registered building inspector that building control authorities use to provide advice on specified functions could be an employee or someone contracted to provide the advice. An individual who is currently an Approved Inspector could register:
• as a registered building inspector (which would allow them to provide advice to others);
• as a registered building control approver (which would allow them to undertake building control work under Part 2 of the Building Act 1984, but they would need to obtain advice from a registered building inspector before exercising prescribed functions); or
• as both (which would allow them to undertake Part 2 work and rely on their own expert advice before exercising the prescribed functions).

411. New sections 58B to 58D set out the requirements for the registration of individuals as registered building inspectors by the regulatory authority. The new sections provide for the regulatory authority to publish the criteria for registration, an application procedure and enables the regulatory authority to grant registration with restrictions (for instance as to the type of buildings on which an inspector can give advice) or subject to conditions (for instance requiring regular training) and for the Secretary of State (and Welsh Ministers in Wales) to set, in regulations, the length registrations are valid (for instance five years).
412. New sections 58E to 58M set out more detail on the ongoing regulation of registered building inspectors including an inspector applying to vary or cancel their registration (for example to be able to provide advice on further types of buildings after improving their competence through training), that the regulatory authority will publish a code of conduct for inspectors, how to deal with professional misconduct by inspectors (including a power to seek information from inspectors), disciplinary action that can be taken (including varying, suspending or cancelling an inspector’s registration) and appeals. The new sections set out a new offence of acting outside the scope of their registration without reasonable excuse i.e. providing advice or carrying out a restricted activity on a type of building which is outside the restrictions specified on their registration or providing advice or carrying out a restricted activity whilst suspended. It also sets out a new offence of impersonating a registered building inspector with intent to deceive.
413. New sections 58N to 58P set out the requirements for the registration of persons (i.e. organisations or individuals) as building control approvers by the regulatory authority. The new sections provide for the regulatory authority to determine the criteria for registration, an application procedure for the registration of building control approvers and enables the regulator to grant registration with restrictions (for instance as to the type of buildings the registered building control body can work) or subject to conditions, and for the Secretary of State (and Welsh Ministers in Wales) to set, in regulations, the length of registrations.
414. New sections 58Q to 58X set out more detail on the ongoing regulation of registered building control approvers including applying for a variation or cancellation of registration, that the regulatory authority will publish professional conduct rules, a power for the regulatory authority to seek information from registered building control approvers, and investigations and sanctions if a registered building control approver contravenes the professional conduct rules. It also sets out two new offences of (1) exercising a building control function outside the scope of its registration (i.e. outside the restrictions specified on its registration or taking on new work when suspended), without reasonable excuse (for instance where the approver has not been informed by the regulatory authority that it has been suspended) and (2) of impersonating a registered building control approver with intent to deceive.
415. New section 58Y enables the regulatory authority to designate some or all of functions under sections 58B to 58X to be undertaken by another body.
416. New section 58Z enables the regulatory authority to make operational standards rules for local authorities and registered building control approvers. Local authorities and registered building control approvers must comply with the rules in the exercise of their building control functions. The regulatory authority must publish the rules and may revise and republish these rules from time to time.
417. New section 58Z1 enables the regulatory authority to direct local authorities and registered building control approvers to provide at specified times or intervals, such specified reports, returns and other information relating to the exercise of their building control functions. This could include periodic data reporting. A registered building control approver who fails to comply with the direction or provides false or misleading information commits an offence. This offence is punishable by a fine.
418. New section 58Z2 enables Welsh Ministers to request a local authority or registered building control approver to provide any documents or information relating to the exercise of their building control functions. A notice must be provided to the local authority or registered building control approver in writing to specify the nature and type of information required. A registered building control approver who fails to comply with the notice or provides false or misleading information commits an offence that is punishable by a fine.
419. New section 58Z3 enables the regulatory authority to investigate a local authority or registered building control approver if they may have failed to meet the operational standards rules. The regulatory authority must first publish a statement of the investigation procedure it intends to follow and allow for the authority or building control approver to make representations. The regulatory authority may revise and publish the revised statement at any time.
420. New section 58Z4 allows the regulatory authority to issue an improvement notice to a local authority or registered building control approver if following an investigation or otherwise, they have breached the operational standards rules. The purpose of an improvement order is to direct the authority or registered building control approver in default to remedy the breach as specified in the order. The improvement notice must be served with a statement of reasons to explain why it has been served. In England, copies must be provided to the Secretary of State. In the case of a registered building control approver, copies must additionally be provided to each local authority. The notice has effect for the timeframe specified in the notice or until it is revoked. A local authority or registered building control approver may appeal the improvement notice to the First-tier Tribunal.
421. New section 58Z5 allows the regulatory authority to issue a serious contravention notice to a local authority or a registered building control approver if following an investigation or otherwise, it is found that the operational standards rules have been breached and this poses a risk to the safety of people in or about buildings. The regulatory authority may also issue a serious contravention notice if an improvement notice has been breached. The purpose of the serious contravention notice is to direct an authority or registered building control approver to take specific action as set out in the notice to remedy the breach. The serious contravention notice must be served with a statement of reasons to explain why it has been served. In England copies must be provided to the Secretary of State. In the case of a registered building control approver, copies must additionally be provided to each local authority. The notice has effect for the timeframe specified in the notice or until it is revoked. An authority or registered building control approver may appeal the serious contravention notice to the First-tier Tribunal. A person who contravenes the notice commits an offence and is liable to pay a fine.
422. New section 58Z6 - If the regulatory authority has given a registered building control approver one or more serious contravention notices and considers the way in which the registered building control approver exercises their building control functions falls short of the standards expected, puts the safety of persons in or about buildings at risk and is likely to continue to do so, the regulatory authority may cancel the building control approver’s registration. The regulatory authority must first notify the registered building control approver that it is considering taking this action and provide its reasons for this. The building control approver must be invited to make any representations in respect of the proposed action within specified timeframes which must be no less than 14 days. Where the regulatory authority proceeds to cancel the approver’s registration, it must notify the approver and each local authority that it has done so and provide a statement explaining why the decision has been taken. A registered building control approver may appeal to the First-tier Tribunal against the cancellation of its registration.
423. New section 58Z7- If the Building Safety Regulator has given a local authority one or more serious contravention notice and considers the way in which the authority exercises their building control functions falls short of the expected standards, puts the safety of persons in or about buildings at risk and is likely to continue to do so, the Regulator may recommend to the Secretary of State to make an order for the authority’s functions to be transferred to the Secretary of State or another local authority. The Building Safety Regulator must initially notify the authority that it is considering taking such action and explain its reasons for this. The authority must be invited to make any representations in respect of the proposed action within specified timeframes which must be no less than 14 days. Where the Building Safety Regulator proceeds to act, it must notify the authority that it has done so and provide a statement explaining why the decision has been taken. A local authority may appeal to the First-tier Tribunal against such recommendation.
424. New section 58Z8 confers a power on the regulatory authority to inspect local authorities and registered building control approvers, in relation to their building control functions. The reasons for carrying out inspections includes ascertaining the efficiency and effectiveness of a building control body, or for verifying information provided to the regulatory authority by a building control body.

Effect in Wales

425. The provisions relating to the registration and ongoing regulation of building inspectors and building control approvers will apply in Wales save that "regulatory authority" in Wales will be the Welsh Ministers. Section 58Y enables the regulatory authority (being the Welsh Ministers for Wales) to delegate some or all of the regulatory authority’s registration functions under sections 58B to 58X to be undertaken by another person. The power to set and oversee operational standards for both approvers and local authorities in Wales will rest with Welsh Ministers as the regulatory authority. This includes powers to require the provision of periodic and particular information, investigative powers, the issue of improvement and contravention notices, and inspections. Welsh Ministers will have powers in relation to the deregistration of an approver in the face of significant contravention (powers to transfer local authority functions already exist in the current act).

Background

426. This is a new provision.

     Example 1: Individual building inspector registration An individual who wants to work as a registered building inspector will need to submit an application to the regulatory authority demonstrating how they meet the published criteria. The criteria set by the regulatory authority may include measures of competence, being a fit and proper person, previous experience etc. Upon reviewing the application, the regulatory authority will decide whether or not to grant registration and if any restrictions or conditions should be imposed on the inspector’s registration. Restrictions may include matters such as the type or height of buildings an inspector may advise on. Example 2: Building control approver registration A person (for instance a private sector company or sole trader) who wishes to undertake building control work under Part 2 of the Building Act 1984 will need to be registered. A person will need to submit an application to the Building Safety Regulator demonstrating how they meet the regulatory authority’s criteria for registration as a building control approver. After reviewing the application, the regulatory authority will decide whether or not to grant registration and if there are any restrictions or conditions that should be imposed on the building control approver’s registration. Restrictions may include matters such as the type or height of buildings a building control approver can work on. Section 58Z - The regulatory authority publishes operational standards rules for local authorities and registered building control approver. Local authorities and registered building control approver have to adhere to these rules and comply with the requirements in the exercise of their duties and functions. Over the course of time, there are changes within the industry which mean that the rules need to be revised to reflect best practice requirements for local authorities and registered building control approver. The regulatory authority may revise the rules and must publish the revised rules for local authorities and registered building control approvers to see so that they have access to it. Section 58Z1 - The regulatory authority requires information from a registered building control approver in relation to the exercise of its building control function. The Building Safety Regulator writes to the building control approver to direct it to provide specific reports, returns and other information and specifies the date when the information is to be provided. In providing its return to the regulatory authority, the building control approver provides false and misleading reports and therefore commits an offence. The registered building control approver is convicted of the offence and ordered to pay a fine. Section 58Z2 - Welsh Ministers require information from a registered building control approver in relation to its building control functions. The Welsh Ministers provide a notice in writing to the registered building control approver which specifies the information required, the date by which it is required and the form the information must be provided in. The registered building control approver fails to comply with the notice. The registered building control approver commits an offence by failing to provide the information requested. The registered building control approver is convicted of the offence and ordered to pay a fine. Section 58Z3 - The regulatory authority receives a complaint that a local authority has failed to meet the operational standards rules in the exercise of their building control functions. The regulatory authority decides to investigate the local authority. The regulatory authority will have published a statement outlining the procedures it will follow in relation to investigations and provides an opportunity for the local authority to make representations during the investigation. Section 58Z4 - Following an investigation, it is established that the operational standards rules have been breached by local authority. To remedy the situation, the regulatory authority serves an improvement notice on the local authority together with a statement of reasons explaining why the notice has been served. In England the Building Safety Regulator also provides copies to the Secretary of State. The regulatory authority sets out in the notice what specific actions the authority must take to resolve the breach and sets a timeframe of 28 days to complete these actions. The local authority reads the statement of reasons and understands why the decision has been taken to serve the notice. The local authority chooses to comply with the notice and does not appeal to the First-tier Tribunal. The local authority undertakes all actions set out in the improvement notice within 28 days to remedy the breach. Section 58Z5 - Following an investigation, it is established that the operational standards rules have been breached by a local authority and this represents a risk to the safety of people in or about the buildings in concern. To remedy the situation, the regulatory authority serves a serious contravention notice on the local authority together with a statement of reasons to explain why the notice has been served. In England the Building Safety Regulator also provides copies to the Secretary of State. The regulatory authority sets out in the notice what specific actions the authority must take to resolve the breach and sets a timeframe of 28 days to complete these actions. The local authority does not appeal the notice to the First-tier Tribunal. The local authority reads the statement of reasons and understands why the decision has been made to serve the notice. The local authority, however, fails to comply with the notice and does not undertake the actions as set out within the 28-day timeframe. The local authority does not have reasonable justification for failing to carry out the actions as directed in the notice and is therefore convicted of this offence and is ordered to pay a fine. Section 58Z6 - The regulatory authority has given a registered building control approver a serious contravention notice, and the approver appears to be continuing to exercise their building control functions below the expected standard, putting the safety of persons at risk. The regulatory authority considers that the appropriate next step is to cancel the approver’s registration. The regulatory authority notifies the approver that it is considering taking such action and explains its reasons. The approver is invited to make any representations within 14 days in respect of this proposed action. After representations have been made, the regulatory authority considers it appropriate to proceed to act and it notifies the approver that it has done so and provides a statement explaining why the decision has been taken. The regulatory authority also notifies each local authority in England. The approver chooses not to appeal the decision to the First-tier Tribunal. Section 58Z7 - The Building Safety Regulator has given a local authority in England a serious contravention notice, and the local authority appears to be continuing to exercise their building control functions below the expected standard, putting the safety of persons at risk. The Building Safety Regulator considers that the appropriate next step is to recommend to the Secretary of State to make an order to transfer the authority’s functions to another local authority. The Building Safety Regulator notifies the local authority that it is considering taking such action and explain its reasons. The local authority is invited to make any representations within 14 days in respect of this proposed action. After representations have been made, the Building Safety Regulator considers it appropriate to proceed to act and it notifies the authority that it has done so and provides a statement explaining why the decision has been taken. The local authority chooses not to appeal this decision to the First-tier Tribunal.

Section 43: Transfer of approved inspectors’ functions to registered building control approvers

Effect

427. Part 2 of the Building Act 1984 currently provides for Approved Inspectors (including organisations and individuals) to supervise building work. This section, and Schedule 4, makes a number of consequential amendments to provisions in the Building Act 1984, mainly in Part 2, so that references to Approved Inspectors are changed to become references to registered building control approvers. Current "Approved Inspectors" (i.e. organisations) wishing to undertake building control work will have to meet minimum criteria to become registered as building control approvers, becoming subject to the oversight of the regulatory authority (the Building Safety Regulator in relation to England, and the Welsh Ministers in relation to Wales).
428. An individual who is currently an Approved Inspector could register:
     • as a registered building inspector (which would allow them to provide advice to others);
     • as a registered building control approver (which would allow them to undertake building control work under Part 2 of the Building Act 1984, but they would need to obtain advice from a registered building inspector before exercising prescribed functions); or
     • as both (which would allow them to undertake Part 2 work and rely on their own expert advice before exercising the prescribed functions).

429. Local authorities will not have to register as building control approvers and will continue to perform their building control functions. This is because local authorities have a statutory duty to enforce building regulations in their area under section 91(2) of the Building Act 1984. It should be noted that under section 116 of the Building Act 1984 (as amended by section 45) where a local authority is failing, its building control functions can be transferred by the Secretary of State to another local authority.
430. Schedule 4 amends references to "Approved Inspector" in the Building Act 1984 to "registered building control approver". Paragraph 12 of the Schedule amends an existing requirement for notification by the magistrates’ court. Currently under section 57(3) of the Building Act 1984 the court has to notify the approval body (ie CICAIR), after the amendment the court will need to notify the relevant authority (ie Building Safety Regulator in relation to England or Welsh Ministers in relation to Wales, or the body delegated).

Effect in Wales

431. This section and Schedule 4 will apply equally in Wales.

Background

432. This section makes a number of amendments to the Building Act 1984 which are consequential on Approved Inspectors being replaced by registered building control approvers.

     Example In future initial notices etc. for building control work under Part 2 of the Building Act 1984 will need to be issued by a registered building control approver instead of an Approved Inspector.

Section 44: Functions exercisable only through, or with advice of, registered building inspectors

Effect

433. This section amends the Building Act 1984 to insert new sections 46A and 54B.
434. In relation to building control authorities (defined in section 120A as the Building Safety Regulator and the relevant local authority (section 120A was inserted into the Building Act 1984 by section 32)), section 46A provides that prescribed building control functions will be specified as functions which building control authorities will only be able to carry out having first obtained and considered the advice of a registered building inspector. New section 54B makes the same provision in relation to registered building control approvers. The purpose of these provisions is to ensure that the Building Safety Regulator, local authorities and registered building control approvers take advice from individuals who have demonstrated relevant expertise before important building control decisions are taken. These restricted functions will be set out in secondary legislation.
435. In relation to building control authorities, new section 46A provides that building control authorities must only carry out certain restricted activities through using an appropriately registered building inspector. These activities will be set out in secondary legislation and is likely to include activities like formal building control inspections. New section 54B makes the same provision in relation to registered building control approvers. The purpose of these provisions is to ensure that individuals who have demonstrated relevant competence are carrying out the important activities that are part of the building control process.
436. Building control authorities have a statutory duty to supervise and enforce building regulations in their area under section 91(2) of the Building Act 1984 in the case of local authorities, and the new building control regime for higher-risk buildings (and other buildings where a regulator’s notice is in force (see section 32) in the case of the Building Safety Regulator. It is not intended that all of the work they do under this duty will be specified as a function which they must not exercise before they have obtained and considered a registered building inspector’s advice. It is intended that the specified functions of a building control authority will be broadly equivalent to those of a registered building control approver.
437. Some examples of local authority functions that could be specified in secondary legislation as functions which an authority can only exercise after obtaining and considering advice from a registered building inspector may include approval or rejection of full building plans and issuing completion certificates. Some examples of Building Safety Regulator functions that might be specified include approving a construction Gateway application for a higher-risk building or issuing a completion certificate. Some examples of registered building control approver functions that could be specified in secondary legislation include sending initial notices and issuing plans and final certificates.
438. This section requires that building control authorities and registered building control approvers must obtain and consider the advice of a registered building inspector each time they want to make a decision on a restricted function and to use an appropriately registered building inspector to carry out restricted activities on their behalf. If a registered building control approver breaches these requirements it can be prosecuted and, if found guilty, fined. For building control authorities, in the case of failure to use a registered building inspector to carry out restricted activities or to seek advice from a registered building inspector, their building control decision could be called into question and subject to judicial review for failing to follow the legislative process.

Effect in Wales

439. This section will operate similarly in Wales such that some building control authority functions will be specified as functions which building control authorities (defined as relevant local authorities for Wales) or registered building control approvers will only be able to carry out having first obtained and considered the advice of a registered building inspector. For higher-risk buildings the relevant local authority will be the building control authority, not the Building Safety Regulator.

Background

440. This section inserts new sections 46A and 54A into the Building Act 1984.

     Example 1: Local authority A local authority wishes to issue a final completion certificate on a building. The local authority will be required to obtain advice from a registered building inspector (who may or may not be directly employed by them) who provides advice. Some local authorities will have an in-house team who will provide all such advice, but some local authorities who do not have significant amounts of certain building developments may obtain this advice from the inspector employed in another local authority or in the private sector. The local authority will then consider the advice received and make a decision on whether or not to issue the completion certificate. Example 2: Building Safety Regulator The Building Safety Regulator is reviewing full plans and giving building control approval under the new construction Gateway two arrangements for higher-risk buildings. Before deciding whether to allow construction to start, it will be required to obtain advice from a registered building inspector on whether the work to create a higher-risk building shown in the Gateway two application (the proposed plans etc.) complies with the technical requirements of the building regulations. The Building Safety Regulator will then consider the registered building inspector’s advice before making a decision on whether or not to grant building control approval. Example 3: Registered building control approver A registered building control approver wishes to issue a plans certificate for a building. It will be required to obtain advice from a registered building inspector on whether the building work shown in the proposed plans complies with the technical requirements of the building regulations. The registered building control approver will then consider the registered building inspector’s advice before making a decision on whether or not to issue the plans certificate. Example 4: Restricted Activities A registered building control approver wishes to carry out an inspection to check for compliance of an element of the work with the technical requirements of the building regulations. Where such an inspection is a prescribed activity, the registered building control approver must use a registered building inspector who has the appropriate registration type for the building work and building to be inspected, to carry out the inspection.

Section 45: Default powers of appropriate national authority

Effect

441. This section amends sections 116 to 118 of the Building Act 1984. The existing sections 116 to 118 apply in England and Wales, some of the amendments in this section are clarifying what powers the Welsh Ministers already have had transferred to them. Section 116 provides that if the appropriate national authority (i.e. in England, the Secretary of State or in Wales, Welsh Minsters) is satisfied that a local authority has failed to perform their functions under the Act, it may make an order which declares them to be in default and instruct them to discharge their functions in a specific way and within a specific timeframe. If a local authority fails to comply with this order, the appropriate national authority may make a transfer order to assign to itself specified building control functions belonging to the body in default. The substantive change made to section 116 by this section is to provide that in England, the Secretary of State must first consult the Building Safety Regulator before making any orders. The Secretary of State may also make a transfer order if the Building Safety Regulator makes a recommendation and if he is satisfied that the authority is exercising its functions below the standard expected, which puts, or may put, the safety of persons in or about buildings at risk and is likely to continue to do so.
442. This section also amends section 117 of the Building Act 1984. The effect of the amendments is to restate that the Secretary of State’s expenses incurred in carrying out functions transfer to him under section 116 can be paid from money provided by Parliament. Further the amendments restate that the amount of expenses incurred by the appropriate national authority is recoverable as a debt due to the authority and is to be paid by the body in default.
443. This section also amends section 118 of the Building Act 1984. The appropriate national authority may at any time vary or revoke a transfer order. A substantive change is that the Secretary of State must first consult with the Building Safety Regulator. The appropriate national authority may make any provisions to deal with the transfer, vesting and discharge of any property or liabilities incurred by the person to whom the functions were transferred to, either through the revoking order or a new order.

Effect in Wales

444. This section will operate similarly in Wales. Welsh Ministers, as the "appropriate national authority" for Wales may also make a transfer order in respect of a local authority if the Welsh Ministers are satisfied that the way in which the authority exercises its functions under the Act falls short of the standards expected.

Background

445. This section amends sections 116, 117 and 118 of the Building Act 1984, to clarify the powers of the appropriate national authority to intervene where a local authority has failed to perform their functions under the Building Act 1984, and to recognise the role of the Building Safety Regulator in advising the Secretary of State in relation to this power.

     Example 1 A local authority has failed to perform its building control functions to the required standard. To remedy the situation, the Secretary of State first consults with the Building Safety Regulator and makes an order which declares the authority to be in default and directs them to carry out their functions in a specific way within a period of 28 days. The authority fails to comply with a requirement of this order within the timeframe. The Secretary of State considers that the appropriate next step is to make a transfer order and first consults with the Building Safety Regulator. The Secretary of State proceeds to make the transfer order which assigns to another local authority specified building control functions that belong to the authority in default. Example 2 The Building Safety Regulator notices that a local authority is failing to perform its functions to the required standard and recommends to the Secretary of State that a transfer order should be made. The Secretary of State reviews this recommendation and is satisfied that this authority is likely to continue to exercise its functions below the standard expected and put the safety of people at risk. The Secretary of State proceeds to make the order which assigns the functions of the authority in default to himself. Example 3 The Secretary of State considers that the circumstances of the local authority which led to the transfer of its functions has now been resolved. The Secretary of State first consults with the Building Safety Regulator on this issue and then proceeds to makes an order to revoke the transfer order. Within this revoking order, the Secretary of State sets out any steps to be taken to deal with the assignment and release of any property or liabilities incurred as a result of the original transfer.

Section 46: Higher-risk building work: registered building control approvers

Effect 

446. This section amends Part 2 of the Building Act 1984 in relation to higher-risk building work. Part 2 sets out the building control regime where building work is supervised by an Approved Inspector (to be renamed as registered building control approver by section 44 of this Act).
447. The amendments to sections 47 and 51A of the Building Act 1984 remove the ability for persons carrying out any building work which is higher-risk building work to choose their own building control body. (Higher-risk building work is defined in section 91ZA(3), inserted by section 32, e.g. work to create a higher-risk building or any building work to a higher-risk building). Technically this change is achieved by prohibiting the submission of an initial notice or an amendment notice in relation to higher-risk building work.
448. The effect of the amendments in this section is to provide that any initial notice (or other notice or certificate under Part 2) which specifies building work which is higher-risk building work will be invalid (i.e. will be void and have no legal effect) and Part 2 (including the immunity from enforcement action) would not apply if that building work is carried out. For the avoidance of doubt any work carried out in these circumstances will not have the enforcement protection provided for in sections 48(1), 51(3) or 53(2) of the Building Act 1984. Further it is irrelevant whether the local authority purported to accept the initial notice – as it is void ab initio any acceptance of it will also have no effect.
449. Only the Building Safety Regulator can carry out supervision of higher-risk building work (see section 91ZA of the Building Act 1984, inserted by section 32). A person wishing to carry out building work which is higher-risk building work is unable to use a registered building control approver (currently known as Approved Inspectors) or a local authority to supervise that work.
450. New section 52A is inserted into the Building Act 1984 to deal with the situation where there are changes to original plans after an initial notice has been submitted i.e. where the original initial notice did not specify higher-risk building work but plans are changed later so that the work, if built, would result in some or all of the works being higher-risk building work. In this scenario the registered building control approver (or the person carrying out or intending to carry out the work) must cancel the relevant part of the original initial notice. The local authority is also required to cancel the relevant part of the initial notice if it becomes aware that some or all of the work is higher-risk building work.
451. Additionally, in England only, where the relevant part of an initial notice is cancelled under new section 52A the registered building control approver, person carrying out or intending to carry out work or local authority who cancelled it is under a duty to inform the Building Safety Regulator of the cancellation.
452. It is a criminal offence if without reasonable excuse the body or the person fails to cancel the relevant part of the notice or, in England, fails to give a copy of the notice to the regulator.
453. New section 52B is inserted into the Building Act 1984. It applies only where an initial notice is cancelled under new section 52A i.e. where the original initial notice did not specify any higher-risk building work, but plans subsequently changed. Section 52B(2) provides that where the relevant part of an initial notice is cancelled under section 52A and a final certificate has been given and accepted in relation to some or all of the work, then that work will have enforcement protection. The new section 52B also provides that the Building Safety Regulator will enforce building regulations in respect of all of the uncertified work, regardless of whether it is in relation to a period before or after the work became higher-risk building work.
454. Subsection (5) of section 46 creates a right of an appeal where a local authority cancels an initial notice under section 52A(4). The person carrying out the work or the registered building control approver may appeal to the magistrates’ court (in Wales) or the First-tier Tribunal (in England) on the grounds that the initial notice was not properly cancelled. Where the court or tribunal rules that the local authority has wrongly cancelled the notice, the original notice is not reinstated, however any issued final certificate persists, if accepted prior to the cancellation. The person carrying out the work and a registered building control approver may submit a new initial notice within seven days of the court or tribunal’s ruling being handed down. This can be with either the original registered building control approver or another one. If the registered building control approver of the new initial notice is different to the registered building control approver of the original initial notice, then the certificate and transfer report process in sections 53B to 53E apply.

Effect in Wales

455. This section will operate in the same way in Wales where choice of building control body is similarly removed for higher-risk building work. For such work only the local authority for the area or as designated by Welsh Ministers will be able to act as building control authority. Where changes result in work becoming higher-risk building work, cancelation of the original notice and notification to the local authority will be required.

Background 

456. This section amends sections 47, 51A and 53 of the Building Act 1984 and inserts new provisions, section 52A and 52B into that Act. The current provisions in the Building Act 1984 allow for supervision of plans and building work to be undertaken either by local authority building control or by an Approved Inspector (or by a public body itself – see section 47).
457. This section amends the Building Act 1984 to prevent a dutyholder in relation to higher-risk building work from choosing their building control body, as recommended by the Independent Review. The amendments ensure the new Building Safety Regulator is the building control body for this type of building work and is able to apply the new regulatory arrangements to improve the safety of such buildings. The definition of "higher-risk building work" is dealt with in section 31. 

     Example 1 A registered building control approver inadvertently specifies some higher-risk building work in an initial notice. Whether or not the notice is accepted by the local authority the notice would be void and have no legal effect as section 47(1)(a) (as amended by this section) makes it unlawful for an initial notice to relate to a higher-risk building work. The whole notice would be void. The following examples apply in circumstances where there is a new non-higher-risk building due to be constructed, and there is a change to the use or the height of, or number of storeys in the building such that after the works the building is a higher-risk building. In these scenarios, the dutyholder for the building work must follow the regulatory process for higher-risk buildings, and only the Building Safety Regulator can supervise the building work relating to such buildings. Example 2: Registered Building Control Approver  A registered building control approver may have submitted an initial notice for a building which did not specify any higher-risk building work, but with a change of plans the work subsequently becomes higher-risk building work. They will be required to submit a cancellation notice to the local authority. The supervision of building work in relation to higher-risk building work is to then be the role of the Building Safety Regulator (see section 91ZA of the Building Act 1984 as inserted by section 32) and the construction Gateways or refurbishments etc. processes must be used. Example 3: Person(s) carrying out the work  The person(s) carrying out the work under an existing initial notice wishes to change their building plans for a development to such an extent that it results in the building, if built, being a higher-risk building. If the change requires planning permission, then planning Gateway one will apply and the local planning authority will inform them that the development will be required to be submitted with a Fire Statement. If the change is possible without a new planning permission, then their existing registered building control approver (currently known as Approved Inspector) should inform the person(s) that this will result in the works becoming higher-risk building work. If the person(s) carrying out the work wishes to continue with the change they should then cancel the existing initial notice and follow the new Gateway etc. process.  Example 4: Local authority  A local authority may receive an amendment notice which amends the original initial notice so that some or all of the works become higher-risk building work. An amendment notice that relates to proposed higher-risk building work would be invalid and the local authority should explain this to the registered building control approver/person intending to carry out the works. The local authority has no power to accept or reject the amendment notice as it is void. If the local authority becomes aware that the higher-risk building work has started, then it must cancel the relevant part of the original initial notice under the power in section 52A notifying the registered building control approver and person(s) carrying out the work. The supervision of building work in relation to higher-risk buildings is the role of the Building Safety Regulator (see section 91ZA of the Building Act 1984 as inserted by section 32) and the construction Gateways etc. processes must be used.  Example 5: Part cancellation of an initial notice A local authority receives an initial notice for a building project containing five buildings that are not higher-risk building work. Later the developer changes the plans for one of the buildings to be a higher-risk building and for the other four to remain non-higher-risk buildings. The initial notice would be partially cancelled, remaining valid for the four non-higher-risk buildings but not valid for the fifth, higher-risk building.

Section 47: Higher-risk building work: public bodies

Effect

458. This section amends the Building Act 1984 by inserting a new section 54A into the Act. Section 54A gives the Secretary of State the power to make regulations amending sections 5, 54 and Schedule 4 to the Act in relation to higher-risk buildings. This power would enable the Secretary of State to create a modified higher-risk buildings regime for public bodies, for example, prevent a public body from submitting a public body notice (a notice given to the local authority to supervise their own building work instead of the local authority) for higher-risk building work.

Effect in Wales

459. This section will apply equally in Wales providing the equivalent power to Welsh Ministers

Proposed use of power

460. This provision allows the Secretary of State to make regulations as to how the new regulatory regime for higher-risk buildings will be applied (if at all) to a public body designated under sections 5 and 54 of the Building Act 1984.

Background

461. A public body is defined in section 54 of the Building Act 1984 as a body (corporate or unincorporated) that acts under an enactment for public purposes and not for its own profit and is, or is of a description that is, approved by the Secretary of State in accordance with building regulations. There are currently no public bodies approved by the Secretary of State under section 54.
462. Historically, provision for public body notices under section 54 of the Building Act 1984 allowed public bodies to carry out supervision of their own building work. This means it is allowed to supervise its own building work only where a public notice has been accepted.
463. Moreover, section 5 of the Building Act 1984 enabled public bodies to benefit from an exemption from procedural requirements of the building regulations. This meant that an "exempt body" does not have to notify a local authority when starting any works.
464. Were such a public body to supervise their own higher-risk building work and/or have the ability not to notify the Building Safety Regulator there would be a potential conflict of interest.

     Example The Secretary of State becomes aware that a public body is proposing to build a residential building of 18 metres or higher, and the Secretary of State decides it is not appropriate for the public body to supervise its own higher-risk building work without the regulatory oversight of the Building Safety Regulator. The Secretary of State decides to make regulations that prevent such public bodies from doing this and the body would be required to follow the construction Gateways etc. and proceed under the supervision of the Building Safety Regulator.

Section 48: Insurance: Removal of requirements

Effect

465. This section removes the requirement in the Building Act 1984 for Approved Inspectors to hold insurance through a Government-approved scheme. Instead, Approved Inspectors will be required to adequately cover their own liabilities, including through insurance if necessary.  
466. In section 42 of this Act, the Building Safety Regulator is also given powers to sanction any Approved Inspector who fails to meet standards set out by the professional conduct rules, which may include requirements on insurance. 

Background 

467. The existing Building Act 1984 requires Approved Inspectors to hold insurance through a DLUHC Secretary of State-approved scheme. This is supported by regulations which require Approved Inspectors to provide proof of adequate insurance when performing a number of their statutory functions, such as the signing of final certificates. 
468. Removing the requirement for Government-approved insurance is designed to: 
     • Make the Approved Inspectors sector more resilient and flexible in the face of insurance market fluctuations, and  
     • Create alignment with insurance requirements between Approved Inspectors and other professions. 

469. Secondary legislation will remove the requirement for Approved Inspectors to provide proof of adequate insurance when performing their statutory functions. 

     Example Examples of Approved Inspector statutory functions include the submission of initial notices to local authorities, and the signing of part-final and final certificates.   Secondary legislation will remove the requirement for Approved Inspectors to provide proof of insurance when performing these functions. Checking proof of insurance is currently undertaken by local authorities, and consequently these changes will reduce burden on LAs. The Approved Inspector regulatory body CICAIR will also no longer be required to check insurance for its register of Approved Inspectors.

Section 49: Plans Certificates

Effect

470. This section amends section 50 of the Building Act 1984 on plans certificates.
471. Section 48(2)(a) inserts into the Act new section 50(1A), which sets out the conditions which must be met for a registered building control approver to issue a plans certificate. These are that the registered building control approver must have inspected the full plans or such plans as are sufficient for the purposes of issuing a plans certificate for the work (new section 50(1A)(a)(i) and (ii)); that the plans are not defective (new section 50(1A)(b)); that the registered building control approver is satisfied that the work covered by the plans, if carried out in accordance with the plans, will comply with building regulations’ requirements (new section 50(1A)(c )); and that relevant consultation requirements have been met ((new section 50(1A)(d)).
472. Where the conditions are met, and the person carrying out the work so requests, new sections 50(1B) and (1C) require that the registered building control approver must issue a plans certificate.
473. New section 50(1D) requires that plans certificates must be provided in the prescribed form.
474. Section 48(2)(c) also inserts new section 50(7A) into the Building Act 1984 which enables building regulations to prescribe circumstances in which a plans certificate must be issued and the consequences if a plans certificate is not issued in those prescribed circumstances, for example that the initial notice which has been issued for the work ceases to have effect. It is expected, for example, that plans certificates will be required for buildings covered by the Regulatory Reform (Fire Safety) Order 2005.
475. It also enables building regulations to prescribe that, where the registered building control approver issues a plans certificate in the circumstances set out in subsection (1A)(a)(ii), prescribed information needs to be included on the plans certificate about further plans which the registered building control approver considers need to be provided.
476. Section 48(3) amends paragraph 2 of Schedule 4 to the Building Act 1984 to make similar provision in respect of a public body’s notice plans certificate.

Effect in Wales

477. This section applies in Wales.

Background

478. New section 50 of the Building Act 1984 enables a registered building control approver, at the request of a person intending to carry out building work, to issue a plans certificate to the local authority if they have inspected plans of work covered by an Initial Notice, and are satisfied that if the work is carried out in accordance with the plans, the work will comply with building regulations’ requirements. Under section 53 of the Act and Regulation 15 of the Building (Approved Inspectors) Regulations 2010, a plans certificate has the effect that a local authority cannot take action under sections 35 and 36 of the Building Act 1984 if the work covered by the certificate has been carried out in accordance with the plans.
479. A local authority can reject a plans certificate only on prescribed grounds, which are set out in Schedules 2 and 3 of the Approved Inspectors Regulations. The form of a plans certificate is set out in Schedule 1 of the Approved Inspectors Regulations.
480. Paragraph 2 of Schedule 4 to the Building Act 1984 provides that a public body’s notice plans certificate can be issued for work covered by a public body’s notice if the same conditions as apply to the issue of a plans certificate are met. A public body’ plans certificate is the same as for a plans certificate. The grounds for rejecting a public body’s notice plans certificate, and the form of a public body’s notice plans certificate, are set out in Schedules 1, 5 and 6 of the Approved Inspectors Regulations.
481. The Government consulted in Summer 2020 on proposals that plans certificates should be mandated in certain circumstances. Following the consultation, the Government announced that it would proceed with these plans. See Part 3 of https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/970325/UPDATED_FINAL_Government_Response_to_Fire_Safety_Consultation.pdf .

     Example A person carries out building work on a building covered by the Fire Safety Order 2005. A registered building control approver is appointed as the building control body for the work. The registered building control approver has to check the plans of the work to ensure that if work is carried out in accordance with the plans it will comply with building regulations’ requirements and issue a plans certificate to the local authority using the prescribed form. However, not all the plans for the work are available to be checked at the point at which the plans certificate is issued. Therefore, although the registered building control approver considers the plans are sufficient to issue a plans certificate, they require further plans to be provided and this is set out on the plans certificate.

Section 50: Cancellation of initial notice

Effect

482. This section amends section 52 of the Building Act 1984 to make new provision in relation to cancellation of initial notices by registered building control approvers, local authorities and the person intending to carry out the work.
483. New section 52(1) is amended to require a registered building control approver to cancel its relevant initial notices where it is subject to disciplinary sanction from the Building Safety Regulator in relation to the work – this links to the new sanctions in relation to registration.
484. The existing offence under this section has been extended to registered building control approvers so that failure to act in regard to cancelling initial notices will result, if found liable on summary conviction, to a fine.
485. New section 52(3) is also amended to insert a new power to prescribe further circumstances where a person carrying out work is required to cancel the initial notice for the work. This is a reserve power. There are no current plans to use this power but as the regime is changing it is considered important to have this flexibility.
486. New section 52 is also amended to insert a new subsection (5A) which provides that a local authority must cancel an initial notice where it becomes aware that the registered building control approver has had its registration varied (such that it is not registered in relation to the work), suspended or cancelled, and in other circumstances to be prescribed.

Effect in Wales

487. This section will apply equally in Wales. For example, disciplinary action from Welsh Ministers or their designated body in respect of an Approver under section 42 will require cancellation of an initial notice.

Background

488. At present, if an Approved Inspector/registered building control approver ceases to operate and has not cancelled its initial notices, only the person(s) carrying out the work is able to do so. This has been a significant problem in transitioning such work to local authority building control. This section amends section 52 of the Building Act 1984 to introduce new powers and obligations on the person shown on the initial notice as the registered building control approver (even if they are no longer registered), local authority and person carrying out the work to cancel initial notices and ensure that this process can happen efficiently in the future.

     Example 1: Registered building control approver It is expected that the Building Safety Regulator might use one of its disciplinary powers for a registered building control approver where the body does not have insurance for the type of work covered by an initial notice. Where the registered building control approver has insurance only to supervise domestic projects, if the Building Safety Regulator finds out that it is working on commercial projects without insurance, then its registration may be suspended in relation to commercial projects pending the approver obtaining insurance cover. The Building Safety Regulator will notify the body and all local authorities. Under new section 52(1) the body will be required to cancel its own initial notices, in this case for commercial projects. Under the amendments to section 52(5) local authorities will also be required to cancel initial notices in this scenario. The local authority must give the registered building control approver seven days’ notice of the intended cancellation to give the body an opportunity to make representations to the local authority. Example 2: Local authority A registered building control approver may be subject to a disciplinary sanction by the Building Safety Regulator (or its designated body), for example because there had been a significant breach in their registration such as failing to carry out inspections which resulted in property damage or personal injury. The local authority is required to cancel the initial notice when it was informed by the Building Safety Regulator of the suspension or cancellation of the approver’s registration. A seven-day notice is required to the registered building control approver so that it can make any representations to the local authority (for instance to correctly identify the initial notices affected). Following this, the local authority must cancel the initial notice.

Section 51: New initial notices

Effect

489. This section amends sections 47, 53 and 55 of the Building Act 1984 and inserts new sections 53B to 53E.
490. The amendments to section 53(7) of the Building Act 1984 allows a new initial notice to be given where an initial notice is cancelled by virtue of either disciplinary action taken by Building Safety Regulator, cancellation of initial notice, or where the initial notice lapses. In cases of a cancellation referred to in section 53(7)(a) the new initial notice must follow the process in section 53B is followed.
491. The process in section 53B requires the registered building control approver, once the initial notice has been accepted, to submit a transfer certificate which must confirm that unfinished work up to the date of the certificate do not contravene any provision of building regulations. Conversely, If the registered building control approver is unable to determine whether the unfinished work meets building regulations, they must set out why in a notice to the person carrying out or intending to carry out the work and provide a copy of that notice to the local authority.
492. The registered building control approver must submit a transfer report with any plans, documents or other information related to the confirmation of the transfer certificate.
493. This must be submitted to the local authority within the relevant period set out in this section (21 days or such other period prescribed in regulations) or any agreed extension to that period as agreed with the local authority. Under section 53C the local authority must, by notice, accept or reject the certificate and report before the end of the relevant period. This provision also allows the local authority, by notice, to request further information and require the registered building control approver to give to the local authority such information as may be specified in the notice within the relevant period. Where the local authority requests further information, a copy of the notice must also be given to the person carrying out the work.
494. The registered building control approver must give the information specified in the notice to the local authority before the end of the period of seven days beginning with the day on which the notice is given, or such other period as may be prescribed in regulations. The registered building control approver can request for this period to be extended with the agreement of the local authority.
495. Section 53D sets out the effect of a cancellation of an initial notice where a new initial notice has been submitted. Section 53D requires the local authority to cancel the initial notice where the registered building control approver does not give the local authority a transfer certificate and transfer report in accordance with section 53B(2) or the local authority rejects the transfer certificate and transfer report in accordance with section 53C.
496. Section 53D also gives powers to the person carrying out the work to cancel the initial notice before the local authority accepts or rejects the transfer certificate and report in accordance with section 53B, i.e. voluntarily withdraw from the transfer process. Where a transfer certificate is rejected, or the developer withdraws from the transfer process then the transfer process ends and any work becomes subject to local authority enforcement and supervision.
497. Section 53E restricts the functions of registered building control approver where an initial notice has been accepted following a change of registered building control approver and a cancellation of initial notice as a result of disciplinary action. During the transfers period the "transfer process" removes the ability for the registered building control approver to issue plans, a final certificate or an amendment notice.
498. The amendments made to section 47 cross refer to the new provisions and amendments to section 55 ensuring that there is a right of appeal against rejection by a local authority of a transfer certificate or report.
499. Additionally, this section amends section 53 of the Building Act 1984 to allow the Secretary of State to issue guidance in relation to the new transfer process to assist in the smooth operation of the regime.

Effect in Wales

500. This section will apply in Wales. Power to issue guidance will rest with Welsh Ministers.

Background

501. Currently if a registered building control approver is unable to undertake their function, their work reverts to local authority supervision unless another initial notice has been accepted. A few Approved Inspectors were unable to secure insurance and went into liquidation in 2019, and the consequential unplanned transfers to the local authorities caused disruptions to clients and some local authorities.
502. Similar circumstances such as this could also arise in the future. The measures in this section create greater flexibility and capacity for the building control system to address such issues, while satisfying the local authorities that any work by a new registered building control approver is adequate.

     Example 1: Person(s) carrying out the work A registered building control approver is subject to disciplinary action from the Building Safety Regulator or, in relation to Wales, the Welsh Ministers and as a result loses their ability to continue their function and the initial notice is cancelled. The person(s) carrying out the work wishes to continue with the private building control route and has seven days to submit a new initial notice with another registered building control approver. Example 2: New registered building control approver The new registered building control approver submits a new initial notice and must carry out necessary activities and verify works. If satisfied, the new registered building control approver submits a transfer certificate and transfer report to the relevant local authority within 21 days or the prescribed period in regulations. It is able to ask for an extension to the local authority (which they should not unreasonably withhold). The certificate must have the prescribed information and be accompanied by a transfer report. This transfer certificate and report must be submitted to the new national register. Example 3: Local authority The local authority receives an initial notice from the person(s) carrying out the work and the new registered building control approver. Once a transfer certificate and accompanying report have been received by the local authority, they can either request more information from the registered building control approver, by notice, which should also go the person carrying out the work; or they can accept or reject under prescribed grounds in building regulations. When further information is requested by the local authority, the registered building control approver must provide the specified information within a prescribed period. The local authority will then have a prescribed period of time in which to accept or reject the certificate/report under prescribed grounds. If the registered building control approver fails to provide information within the prescribed time, the local authority must reject the transfer certificate and transfer report and cancel the initial notice. The project will then revert to the relevant local authority building control.

Section 52: Information gathering

Effect

503. This section amends section 53 of the Building Act 1984 in order to enable a local authority to seek information from the person shown on the initial notice as the registered building control approver where it has ceased to supervise a project. This could include requiring a person who is no longer a registered building control approver to provide all its records of supervision of building work. The provision requires that any information provided to the local authority must also be copied to the person carrying out the work. New subsection (4C)(c) also gives the person carrying out the work with a power, by notice, to require other information which a new registered building control approver may need.
504. This section also amends section 57 of the Building Act 1984 to make it a criminal offence to fail, without a reasonable excuse, to provide the local authority with the information requested.

Effect in Wales

505. This section will apply in Wales.

Proposed use of power

506. This provision allows the Secretary of State to make regulations to the prescribed period by which the registered building control approver must furnish information to the local authority and the person carrying out or intending to carry out the work, which they may by notice reasonably require.

Background

507. This section is a new power in response to issues arising from a number of Approved Inspectors that went into administration in 2019. In some cases, administrators have refused to provide information to local authorities and even to the clients of the Approved Inspector because they considered they were under no duty to do so in the Building Act 1984. This section places the person shown on the initial notice as the registered building control approver (formerly Approved Inspectors) under a new duty to provide all information requested by a local authority whether or not the person is still a registered building control approver and also to the person carrying out or intending to carry out the work.

     Example 1: Local authority A registered building control approver has its registration suspended and as a result a local authority cancels a number of its initial notices for work in the local authority’s area and the work becomes subject to building control supervision by the local authority. In order to facilitate its building control functions, the local authority may issue a notice to the person shown on the cancelled initial notice as the registered building control approver requiring it to provide the local authority with the relevant information it holds on the building works. A copy of any information provided must also be sent to the person carrying out the work. Example 2: Person carrying out the work A registered building control approver has its initial notice cancelled as it appears to the person carrying out the work that the registered building control approver is no longer willing or able to carry out its functions with respect to any of that work. As directly interested in the building control information relating to works, the person intending to carry them out is entitled to receive certain information from the former registered building control approver including any information sent to the local authority and any other information they may by notice reasonably require.

Section 53: Information

Effect

508. This section amends the Building Act 1984 by inserting sections 56A to 56C.
509. This section, which mainly applies to England only, repeals the requirement under section 56 of the Building Act 1984 for local authorities to hold local registers of information received from registered building control approvers (although regulations provide for existing information held on the current registers to be saved in their historic form for a long transitional period or uploaded to the new electronic register/portal).
510. Under new section 56A the Building Safety Regulator must establish and maintain a facility which is the national electronic portal.
511. The provision gives the Secretary of State the power to set out in regulations a requirement for a specified person such as the registered building control approver, the person carrying out the work or the local authority to use the national electronic portal to submit information. This power also enables the Secretary of State to authorise specified persons to submit information through other means such as physical documents.
512. Under section 56B the Building Safety Regulator must keep a register of specified information. The register must be maintained in electronic form and ensure that any specified parts of the register are available for inspection by members of the public. In specified circumstances, where a request has been made for copies of documents, these must be made available to members of the public. The information covered will be set out in regulations and is likely to include, but is not limited to, notices, certificates, orders, consents, demands and plans.
513. Under section 56C the Building Safety Regulator is given the power to delegate another body to carry out the function of setting up and running the new electronic portal/register.
514. This section also makes a number of consequential amendments.

Proposed use of this power

515. Regulations will need to be laid to provide details on the prescribed portal, information and persons in order to implement this section.

Background

516. The Building Act 1984 provides for registers of documentation in the Approved Inspector system to be held locally by each local authority. In some cases, local authorities have developed their own electronic registers, but in many cases these registers are still maintained in paper form, and it is difficult to access and utilise the information they contain.
517. These provisions are designed to modernise the sections of the Building Act 1984 which facilitate the efficient functioning of the new registered building control approver system and its oversight.
518. Whilst no new information will be added to existing registers once the new national register comes into force, the existing local registers will need to be kept and accessible to the public for a long period or historic information may be uploaded to the electronic register/portal.

     Example: Submitting an initial notice A registered building control approver and person(s) carrying out the works submit an initial notice under section 47 of the Building Act 1984. They will submit the prescribed information via the new electronic portal set up by the Building Safety Regulator. The local authority will be notified immediately of the submission by the electronic portal and can accept or reject the initial notice via the electronic portal, or the initial notice might be deemed to be accepted by virtue of the prescribed time period elapsing (in section 47 of the Building Act 1984). If the local authority accepts the initial notice with conditions or rejects it under prescribed grounds, it will be required to file this acceptance or rejection via the electronic portal.

Miscellaneous and general

Section 54: Functions under Part 3 of Building Act 1984

Effect

519. This section inserts new section 90A into the Building Act 1984 to provide powers for the Secretary of State, by regulations, to allocate responsibilities in respect of functions provided to local authorities in Part 3 of the Building Act 1984 between the Building Safety Regulator and local authorities.
520. Subsections (2) and (3) of new section 90A allow for notification requirements to be imposed on the regulator and/or local authorities. It is expected that this power will be used to require that, where the local authority retains the function in respect of higher-risk buildings, it must notify the regulator before taking action, and vice versa.
521. Regulations will be subject to the affirmative procedure (see new section 120A in Schedule 5).
522. This section applies to England only.

Background

523. Part 3 of the Building Act 1984 places a number of functions on local authorities in relation to buildings. These include the ability to issue a notice to the building owner requiring work to be undertaken on the building relating to matters such as drains, sanitary conveniences, provision of food storage, and means of escape. Functions are also placed on local authorities to enable them to require action to be taken, or take action themselves in relation to dangerous, defective and dilapidated buildings. Part 3 also provides functions for local authorities in relation to demolitions of buildings.

     Example There is a potential overlap in respect of higher-risk buildings between some of the functions placed on local authorities under Part 3 of the Building Act 1984 and the Building Safety Regulator’s regulatory role for higher-risk buildings in occupation. A specific example is the ability under section 72 of the Building Act 1984 for a local authority to issue a notice requiring extra means of escape from the building in a fire. For higher-risk buildings, the Accountable Person will have needed to demonstrate the adequacy of the means of escape in the safety case for the building. To avoid any confusion and potential duplication of regulation, therefore, the Secretary of State will be able to allocate functions under Part 3 for higher-risk buildings formally to the Building Safety Regulator. Alternatively, those functions may continue to rest with the local authority or be exercised jointly. This approach may be needed for matters where there are links with local authority responsibilities under the Housing Act 2004 or environmental health legislation. It will be important that where the local authority retains responsibility for certain matters, it informs the Building Safety Regulator if it intends to exercise the relevant function(s) so that there is effective coordination between the two.

Section 55: Minor and consequential amendments

524. The provisions of Part 3 of the Act involve changes to the Building Act 1984. Minor and consequential amendments which flow from those changes are set out in Schedule 5.
525. See the explanatory note for Schedule 5 for effects in Wales.

Section 56: Appeals

Effect

526. This section relates to Schedule 6, which makes provision for changes to the appeals process under the Building Act 1984.
527. It sets out that that Schedule 6 to this Act contains amendments to provisions in the Building Act 1984 where appeals and other decisions currently sit with the Secretary of State or the magistrates’ court. These are amended to sit with the Building Safety Regulator and First-tier Tribunal respectively.
528. The Schedule also makes provision for a right of appeal against a local authority decision not to consider an application for building control approval or initial notice where it relates to higher-risk building work.

Effect in Wales

529. See the explanatory notes to Schedule 6 for the effect in Wales.

Background

530. The Building Safety Regulator’s functions will include overseeing the safety and performance of all buildings. The Building Safety Regulator will be overseeing the performance of other building control bodies (local authorities and Approved Inspectors), so appeals should go to it, rather than the Secretary of State.
531. Appeals on building control matters have historically been heard in the Magistrates’ court, but they are civil issues. The Act creates routes of appeal to the First-tier Tribunal in England.

     Example A developer wishes to appeal a decision made by the Building Safety Regulator on a building control matter in England; this will be heard by the First-tier Tribunal rather than the Secretary of State or the magistrates’ court. This will create a level of expertise within the First-tier Tribunal in England to deal with building safety hearings, which previously would have been heard by a local magistrate who might hear no more than one construction related case per year. Further notes are provided for this section in Schedule 6.

Section 57: Fees and charges

Effect

532. This section inserts new section 105B into the Building Act 1984 to allow, in England, the Secretary of State to make regulations to enable fees and charges to be levied by both the Building Safety Regulator and local authorities in connection with the exercise of their respective functions under the Building Act 1984 and regulations made under it.
533. The power allows for regulations to prescribe the levels of fees and charges and to make provisions for schemes under which charges are fixed; the principles to be followed in setting up schemes; and to enable different levels of fees and charges to be levied for different purposes.

Effect in Wales

534. This section applies in Wales where Welsh Ministers will, as the "appropriate national authority" have powers to prescribe fee and charge levels chargeable by Welsh Ministers or Welsh local authorities for Building Act 1984 functions.

Background

535. Paragraphs 5 and 9 of Schedule 1 to the Building Act 1984 provide powers for building regulations to be made to enable local authorities to make schemes to set charges for functions which they undertake under the Building Regulations 2010. These powers have been used to make the Building (Local Authority Charges) Regulations 2010 (the "Charging Regulations").
536. New section 105B of the Building Act 1984 extends these powers to cover all functions exercised by local authorities in England and Wales, the Building Safety Regulator in England, and the Welsh Ministers in Wales, under the Building Act 1984 and regulations made under it. The power in new section 105B enables levels of fees and charges to be prescribed in the regulations or to be fixed in schemes drawn up by local authorities, the Welsh Ministers or the Building Safety Regulator in accordance with principles set out in the regulations. This will allow the relevant authority to set levels of fees and charges to take account of their different circumstances. Fees and charges set in schemes will need to adhere to the principles of Managing Public Money (in England) and Managing Welsh Public Money (in Wales). Regulations will be subject to the negative procedure, as are the current Charging Regulations.
537. Paragraph 82 of Schedule 5 to this Act consequentially repeals paragraphs 5 and 9 of Schedule 1 to the Building Act 1984.

     Example The regulations made using this power will allow local authority charges to include not only specified building regulations functions but all functions they perform under the Building Act 1984 and building regulations. For example, local authorities have functions related to demolitions under Part 3 of the Act, including issuing demolition notices, for which currently they cannot levy charges. Extending the power will enable activities such as this to be covered by charging schemes. The Building Safety Regulator will have a significant number of functions in England under the Building Act 1984 and regulations made under it, including acting as building control authority for higher-risk buildings and certain other buildings, and overseeing the performance and competence of building control professionals. The Independent Review recommended that the Building Safety Regulator for higher-risk buildings should be funded through a full cost recovery approach. It is therefore expected that the Building Safety Regulator will charge fees for its activities as a building control authority and will charge fees where appropriate for other functions it performs under the Building Act 1984 (for instance, applications for registration as a registered building inspector).

Section 58: Levy on applications for building control approval

Effect 

538. This section amends the Building Act 1984 to confer powers on the Secretary of State to impose a new building safety levy in England, that will contribute to the government’s costs of remediating building safety defects. This will apply to persons making certain applications for building control approval. 
539. The types of buildings and building work affected will be prescribed in secondary legislation. This section allows the Secretary of State to distinguish in setting the levy between persons eligible to join a building industry scheme but who do not join a scheme and others.   
540. The levy will be paid to the Secretary of State, or a body designated by the Secretary of State. A percentage of levy funds may also be set aside to cover the costs of administering the levy. 
541. Regulations will set out the detailed design of the levy. This will include the basis for the levy and rates; who must pay and when; the consequences of non-payment; refunds; and disputes. Provision will be made to allow the withholding of building control approvals unless the levy has been paid. 

Background 

542. This is a new levy, contributing to the government’s investment in building safety to protect leaseholders from unaffordable remediation costs.  
543. The levy will be paid as part of the building control process and will apply to all new residential developments, unless otherwise excluded. 

     Example  A developer makes an application to the building control body about a new residential development. At the same time, they self-assess their levy liability and make the payment to the designated levy administrator, along with providing the necessary supporting information. The calculation is checked by the levy administrator.  Where the levy is paid in full and assessed as correct, the building process continues.  Where the levy is liable and not paid, the building control body will have the powers in regulations to refuse the application or not grant it until the levy is paid.

Section 59: Crown application

Effect 

544. This section introduces a new section to the Building Act 1984 that makes provision about the application of Parts 1 (with certain exceptions), 2 and 2A (with exceptions) of the Building Act 1984 to the Crown. It also makes provision about the application of Part 4 of that Act so far as relating to provisions in the Parts mentioned above. 

Background 

545. This is a new section. 

Section 60: Application to Parliament

Effect

546. This section makes provision about the application of the Building Act 1984 to Parliament.
547. This Section provides that section 95 of the Building Act 1984, concerning the power to enter premises, does not apply to the Parliamentary Estate.
548. This section also inserts a new section 131B into the Building Act 1984. That section concerns the application of Parts 1 and 2 of the Building Act 1984, and Part 4 of that Act (in relation to these Parts), to the Parliamentary Estate.
549. Section 131B provides that sections 35B to 37, 39A and 40 of the Building Act 1984 do not apply to the Parliamentary Estate.
550. It also provides that no contravention by a Corporate Officer of a relevant provision makes the Corporate Officer criminally liable. The exclusion from criminal liability does not affect the criminal liability of an individual member of staff. Where a contravention would render a Corporate Officer liable the local authority may apply to the High Court to declare the actions of the Corporate Officer unlawful.

Background

551. This is a new provision.