The Building Safety Act 2022 (BSA) is set to significantly impact the way purpose-built student accommodation (PBSA) projects are designed and constructed.
By Ian Hardman, Real Estate Partner and Construction Specialist, Shoosmiths
The BSA received Royal Assent on 28 April 2022 and will be implemented in stages. One of the changes expected to come into force next year is a new stringent regulatory regime during the design and construction of higher-risk buildings. It is the government’s intention for student accommodation to be subject to this new regime set out in Part three of the BSA.
The gateway regime is part of the new regulatory regime. It seeks to ensure building safety risks are considered at each stage of the design and construction of higher-risk buildings. The Building Safety Regulator (BSR), part of the Health and Safety Executive, will be the building control authority for higher-risk buildings in England.
Gateway one – before planning permission is granted – is already in force. Gateway two and three are expected to be implemented between April 2023 and October 2023 and secondary legislation will be required to provide the detail of how these gateways will operate.
What is a higher-risk building?
A higher-risk building is defined in the Act – for the purposes of Part three – as a building that is at least 18 metres in height or has at least seven storeys and is of a description specified in regulations.
A recent government consultation sought views on this definition and proposed that a higher-risk building is one that meets the height threshold set out in the BSA and contains at least two residential units, or is a care home or hospital.
The consultation describes a residential unit as a dwelling or any other unit of living accommodation and gives the example of ‘a flat or rooms in a university hall of residence where amenities are shared’. This clarifies that it is the government’s intention that student accommodation meeting the height requirement will be caught by the new regime.
Preparing for the gateway regime
The government consultation also contains valuable detail on how it proposes to implement the provisions relating to the design and construction of higher-risk buildings.
Before building work can commence, an applicant must submit a building control approval application to the BSR. The BSR will determine the application within 12 weeks.
Building work will not be able to commence until this ‘Gateway two’ approval has been obtained. Consideration must, therefore, be given to the procurement process as the design will need to be sufficiently advanced from a Building Regulations perspective for Gateway two.
It will be a criminal offence to occupy a higher-risk building until a completion certificate has been granted for the building and it has been registered. The BSR has a potential approval period of 12 weeks to approve ‘Gateway three’ applications for a completion certificate.
This period needs to be seen in the context of project timelines for completion and occupation of buildings. It poses a particular risk in the context of PBSA, where it is critical that projects are capable of occupation on time to meet term start dates.
The proposed 12-week period for the BSR to review applications at Gateways two and three may be subject to further delays if concerns are raised at either of these ‘hard stops’.
Delays may also potentially occur if there are delays in the BSR dealing with the volume of applications and if during the construction process changes are required.
For major changes to the building control approval, it is proposed that the applicant must submit a change control application. The BSR will have six weeks to determine the application and the change cannot be made without BSR approval.
For more minor ‘notifiable’ changes, the BSR has ten working days to determine the application. Inspections can be carried out by the BSR at agreed stages and without notice during construction.
All these factors could cause unexpected delays and additional costs, the risk of which must be dealt with in the construction contract. For any PBSA forward funding arrangement, forward commitment sales or deals with universities, all parties must consider how to apportion the risk of delays in delivery and what additional financial penalties, such as the provision of alternative accommodation, could arise as a result of the new regime.
The BSA also provides for a new dutyholder regime placing legal responsibilities on those who procure, plan, manage and undertake building work.
The dutyholder regime will apply to any work to which the Building Regulations 2010 apply. However, there will be additional requirements on those dutyholders working on higher-risk buildings. The current proposal is that, for higher-risk buildings, both the Principal Designer and the Principal Contractor must be appointed before the building control approval application.
Before appointments are made, competence of the proposed dutyholders must be assessed and the consultation proposes that the dutyholder making the appointment should ask any person it appoints whether that person has a serious infraction. Attention must be given to whether previous conduct of that person, in particular any serious infraction, might call into question their competence.
To demonstrate competence, clear records will need to be kept detailing the steps taken to establish that the person appointed has the competence for the role and how competence is monitored.
The consultation proposes that this information will need to be provided as part of the client’s competence declaration, ‘stating that the client has taken all reasonable steps and is satisfied that the Principal Designer (or sole or lead designer) and the Principal Contractor (or sole contractor) meet the competence requirements by having the necessary skills, knowledge, experience and behaviours, including consideration of previous conduct’.
With the new regime expected to be implemented next year, the consultation has provided some clarity on the government’s proposed transitional arrangements.
The current proposal is that developers will be able to continue work under their existing building control body – and therefore, not be subject to the new regime – if they have submitted an initial notice or deposited full plans by the day the new regime commences, and commenced work on an individual building within six months – the transitional period – of this date.
However, these buildings will still be subject to the requirements under Part four of the Building Safety Act 2022 in relation to the in-occupation regime for higher-risk buildings.
The explanatory notes regarding the Part four occupation stage confirm that ‘residential units’ will include student accommodation ‘where basic amenities, such as cooking facilities, a toilet and personal washing facilities are shared with others in the building’.
It is crucial that PBSA developers recognise the significant financial and operational impact changes under the BSA could have. By adapting and taking steps to meet current and future obligations, developers can minimise risk, avoid unnecessary costs or legal implications, while keeping project timings on track – a vital component in meeting student demands and maintaining scheme viability.