Will the Building Safety Act end design and build?

Hywel Davies is chief technical officer of the Chartered Institution of Building Services Engineers (CIBSE)

On 17 August, the government published new regulations for higher-risk buildings (HRBs) and major changes to the Building Regulations that will enable further parts of the Building Safety Act to be fully implemented in England on 1 October 2023. These changes, which implement what has previously been set out and consulted upon, will fundamentally reform the way that design and construction appointments are made.

The Building Regulations (Amendments etc) (England) Regulations 2023 introduce new dutyholder and competence requirements for both practitioners and clients. Part 2A includes 17 new regulations covering the duties, competence and behaviour of clients, designers and contractors. Part 2A also creates the new roles and duties of the principal designer and contractor, which apply to all buildings and are distinct from existing construction design and management duties.

“The changes are not asking the construction industry to build to different standards, they are telling it to behave to different standards”

For those responsible for managing an occupiedHRB or for managing building work in, or to create, a new HRB, there are two new sets of regulations. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 set out the new building-control system for HRBs. Meanwhile, the Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 cover the operational management of all HRBs in occupation.

The new rules require all parties working on HRBs to provide evidence that the installation meets the requirements of the fire and structural safety regulations. To do this, the Building Safety Act divides the lifecycle of a building into three ‘gateways’ (planning and design; construction; and completion), to ensure building safety is considered at every stage, and to ensure the original design intent is preserved and changes managed through a formal review process widely known as the ‘golden thread’.

What’s changed?

The impact of these changes will be significant. For example, as of 1 October, it is a requirement that HRB designs will have to have been completed before construction can commence. It is no longer acceptable for schemes to be submitted with elements of the design incomplete or “contractor to finalise this design” notes. While this requirement is not quite an outright ban on design-and-build for HRB projects, it is very close to one because the complete design must be submitted for approval at the outset.

Similarly, value engineering should largely disappear from the HRB lexicon, too. As often as not, this is the stage where design cohesion starts to disappear from the finished product. Between gateways two (construction) and three (completion), there will be mandatory change-control procedures. If a decision is made to change some component within the building, that change will have to be recorded and, depending on the type of change, the regulator too may need to be informed.

What’s more, contractors need to be aware that if they, a client or the designer wants to make a major change once construction is underway, then work will have to halt until the regulator approves the change – and the regulator will have weeks, not days, to review. Further, the onus will be on those proposing the change to show that the proposed change is Building Regulations-compliant – it is not up to the regulator to pick apart the design to find out whether the change can be applied.

The intention of all of this is, in some ways, very similar to the intentions of Egan and Lathamboth of whom were looking for practices to change in the industry. The difference now is that these changes are covered by legislation; they are not guidance or recommendations – they are the law.

No surprises

Before people start to raise their hands and complain that these regulations are far too complicated to implement in such a short time, the changes should hardly have come as a surprise to anyone in the industry. They were first called for by Dame Judith Hackitt’s review more than five years ago, then confirmed when the government accepted all her recommendations at the end of 2018. Further indications were contained in the consultation on implementing the report in 2019 before the passage of the Building Safety Act introduced the enabling powers for these procedures in 2022.

In any case, they are largely procedural changes because schemes were always meant to have complied with the Building Regulations. All that these changes set out to do is to implement a much more rigorous process for demonstrating the compliance that should always have been achieved.

Will the deadline be met? Not immediately, because the way it works for many in construction is to wait for the regulations to come into effect and then play catch-up. All HRBs, for example, have to be registered by the end of September. At the end of July it was reported that 20 per cent had started the process and only around 1,500, or one in 10, had completed it.

Professional bodies such as CIBSE are working together with the Construction Leadership Council and its constituent bodies to provide further industry guidance on these regulations. This is to help clients, principal designers and contractors, and accountable persons to meet the new obligations in a safe, reasonable and proportionate manner.

The changes are not asking the construction industry to build to different standards, they are telling it to behave to different standards.

The industry has an opportunity to demonstrate a willingness to embrace these reforms and rebuild public trust in what we do. It will not be easy or quick, but it needs to be done.

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