Building safety update: Progress on future changes, including the recategorisation of certain higher risk building works

As has tended to be the case over recent years, we have seen a flurry of publications from the Government in a short space of time.  

In the wake of concerns raised by the Industry Safety Steering Group in its Fifth Report that the Building Safety Regulator (BSR) has allowed itself to become an easy target for criticism, the Government has been busy processing responses to recent building safety related consultations and has now published its various responses.

Single Construction Regulator (SCR)

We are told to expect progress on the legislation for the Single Construction Regulator as soon as parliamentary time allows, with the Single Construction Regulator expected to become operational in 2028.  

Recategorisation of certain Higher Risk Building Work

As a reminder, the consultation on categorisation of higher risk building (HRB) work focused on two proposals to change the legal definition of Category A work under the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023:

• Option 1: exclude most building work within individual flats (residential units) from Category A; and
• Option 2: exclude some small-scale building work in communal areas of HRBs from Category A.  

The expectation would be that any such excluded works would then fall within Category B under the Regulations.  If that is the case, a gateway two application would still be required but less documentation would be required to accompany that application.

Whilst a statutory instrument will be required to give effect to any such changes, the Government has said that:

• It is minded to proceed with Option 1, subject to giving further consideration to some outstanding issues, including:
  • determining the types of building work inside flats that should remain as Category A work, and
  • establishing how to mitigate the risks of unintended consequences identified, including (but not limited to) the risk of multiple minor works having a cumulative impact on the overall safety of a building, the risk of works being detrimental to passive fire safety measures, particularly compartmentation, and the risk of re-categorising work compromising the integrity of the golden thread.  
• For Option 2, this option is to be explored further, with the Government working through issues raised through the consultation (including how best to define ‘small scale’ works) before confirming the final policy position.

There is no indication of a timescale for these next steps and when we can anticipate these changes coming into effect, if they get the green light to go ahead.

Telecommunications Work

Here, we are seeing more rapid progress.  The Secretary of State has given directions under the Building Act 1984 dispensing with procedural requirements for certain telecommunications work as follows:

• For the installation of fibre optic cabling for buildings within the scope of the HRB regime, and for building outside the scope of the HRB regime, all procedural requirements to gain building control authority approval prior to the commencement of works are to be dispensed with; and
• For building work to mobile communication masts on rooftops, only the procedural requirements for buildings within the scope of the HRB regime and for Gateway two will be dispensed with. The Gateway three requirements will still apply for these works.

To ascertain whether the dispensations will apply to the works in question, the full particulars of the dispensations and various conditions detailed in the circular should be checked.

The dispensations will come into effect on 1 September 2026. The Government is proposing to limit the dispensations relating to fibre optic cabling to 3 years. The dispensation relating to mobile masts is not time limited.

It is important to note that, for all such works, the Building Regulations’ functional requirements, duty holder requirements and competence requirements will still apply and that these dispensations will not change the requirements to comply with regulation 38(1)(a) of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (for HRBs) (handover of golden thread information etc on completion) or regulations 38 to 40B (as applicable) in Part 8 of the Building Regulations 2010 (for non-HRBs) to hand over information to the relevant person.

There is a longer term solution being considered, with the Government proposing to work with the industry to develop a competent person scheme to oversee these works.

Building Assessment Certificates

As a reminder, once an HRB has been registered, the BSR can require the principal accountable person (PAP) to apply for a building assessment certificate.  Within 28 days of the BSR’s request, the PAP is required to submit evidence to the BSR to demonstrate that it is adequately managing fire and structural safety risks in compliance with the Building Safety Act 2022.

The Government has announced that the BSR’s approach to building assessments is to be revised.  With assessment times twice as long as originally planned and 66% of applications refused, among other things, the BSR plans:

• to prioritise applications already undergoing an assessment;
• only to call in new applications when necessary until improved processes are agreed and communicated to duty holders; and
• to offer greater support to resident-led PAPs.

Whilst many will welcome the Government’s efforts to “strike the right balance between ensuring robust oversight of safety-critical works, enabling building work to proceed efficiently and without undue delays, and avoiding excessive documentation burdens on applicants”, there remains pressure for the Government to maintain the impetus on reforming the construction products regime.

For more developments and insights on Building and Fire Safety, please see here.