The new building safety landscape: a case study in large-scale housing development

First, developers need to ascertain which authority will be responsible for granting building approval for ongoing developments.

The best outcome for developers is for the transitional provisions within the regulations to apply. This avoids them being subject to the more-stringent building control regime for higher-risk buildings during construction and ensures the local authority remains responsible for granting building approval until the development reaches practical completion, at which point the building should be registered with the Building Safety Regulator (BSR).

If the developer can’t achieve these requirements or if the local authority’s approved inspector fails to register as a building control approver by 6 April 2024, then the authority will immediately pass to the BSR.

Should authority transfer to the BSR, the development will have to travel through all three gateways introduced by the act. The gateways are designed to stop the development at key points (planning, pre-construction and pre-occupation), so that the BSR can review building safety and compliance regularly.

This will have a significant impact on the timetable for construction. It is currently anticipated there will be a minimum delay of 24 weeks to developments because of these gateways. In practice, it may be significantly longer. 

Developers should review the development timetable with both construction contractors and its funders in light of this.

It would also be worthwhile reviewing whether the planning permissions need amending to take into account the latest guidance (inclusion of a second staircase, for example) to prevent problems arising at a later stage.

Under the act, developers will need to identify the ‘duty holders’ and ensure they are sufficiently competent, considering the various new competency requirements brought in by the act and supplemental regulations.

These regulations place specific obligations on the developer (as client) to plan, manage and monitor the works, and to take reasonable steps to ensure the principal designer, principal contractor and others have the skills, knowledge, experience and behaviours necessary to undertake the work and, where it is a company, the organisational capacity.

Developers will need to undertake a review of the legal documents. Where necessary, they should also update any agreements to reflect the amended obligations under the act and Building Act 1984. Agreements should address how the obligation to register the building with the BSR interacts with the concept of practical completion under the building contract and any property or funding documents.

Practically, it will be critical to identify who will be issuing notices and who needs to feed into the same system, to ensure all are issued and issued on time. This should ideally be reflected in the respective party’s obligations or services.

If the case involves a large developer, it will need to consider whether it is required to sign up to the Responsible Actors Scheme introduced in July 2023.

It if is eligible and fails to sign up, then the developer may be caught by the sanctions (which may include a prohibition on major developments and prohibition against getting building control sign-off on any ongoing project) partway through development.

This could prevent or significantly hinder the completion of the development and is something the developer’s funders will want reassurance on as soon as possible.

Stacey Cassidy, partner in law firm TLT’s projects infrastructure and construction team and Danielle Ferguson, senior associate in TLT’s property litigation team