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Building Safety Act 2022: New Regulations For Higher-Risk Buildings

As most of you will know, in August 2023 the Government laid before Parliament several regulations designed to extensively update and change various sections of the Building Safety Act (BSA) 2022 as well as other building regulations.

These changes came into force over the weekend. We have all heard plenty about the intentions behind the new regulations in wake of the Grenfell tragedy and Dame Hackitt’s subsequent report, but what does this mean for you and your business in practice? This article provides a brief overview of the changes.

What Are The New Building Safety Regulations?

The new regulations are:

• Building (Approved Inspectors etc and Review of Decisions) (England) Regulations 2023 – amend the Building (Approved Inspectors etc) Regulations 2010. The amendments mean that the Building Safety Regulator will be the only building control authority for all higher-risk buildings (HRB).
• Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 – provide the detail of the building control regime for HRBs during design and construction or when building work is being done to an existing HRB.
• Building Regulations etc (Amendment) (England) Regulations 2023 – amend the Building Regulations 2010 to support the new HRBs control regime. Extensive changes include Regulation 6, which inserts a new Part 2A “Dutyholders and competence” into the BR 2010.
• The Building Safety Act 2022 (Consequential Amendments etc) Regulations – make consequential amendments to various miscellaneous statutes and orders.

Alongside the tabling of the new regulations, the Government also published its response to the consultation on changes to the building control regime under the Building Safety Act 2022 (BSA 2022) and relevant regulations.

These changes focused on HRBs and with the Government emphasising that it intended to place additional requirements on all those working on such buildings.

What Are The Changes That Came Into Force On 1 October 2023?

Part 2A of the Building Regulations etc. (Amendment) (England) Regulations 2023 introduces new dutyholder and competence requirements for practitioners and clients. These apply to all works that are subject to the Building Regulations 2010. Clients are required to plan, manage, and monitor the project to ensure full compliance with the Building Regulations 2010. Designers and contractors should only be appointed once the client is fully satisfied that they meet the competency requirements.

For their part, designers and contractors , having considered the project, must be sure that they can satisfy the competency requirements before they accept the job. Principal designers and principal contractors who have an active co-ordinating role must meet additional requirements before being appointed or accepting an appointment.

To meet the competency requirements, an individual contractor or designer must have the skills, knowledge, experience, and behaviours necessary to fulfil their duties. Entities must have the organisational capability to undertake the project.

Although most of these requirements will have already been fulfilled by the parties, the amendments require the steps be documented so a detailed audit trail exists.

The Building Regulations etc. (Amendment) (England) Regulations 2023 Also Provide For:

• Amendments concerning the process for building control approval in respect of non-Higher-Risk Building works. This replaces the current “deposit of plans”;
• A more robust definition of “commencement” (which was previously only dealt with in guidance) and provision for the automatic lapse of building control approval after three years if works have not begun; and
• For building works where the Fire Safety Order applies, the provisions concerning fire safety information have been strengthened.

The changes around HRBs set out in the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 are in line with those featured in the consultation on which the Government has recently published its responses. They include:

• At Gateway 2 (building control application stage) and Gateway 3 (completion certificate stage), full details of the compliance documentation to be submitted must be provided.
• Certain changes to approved documents must be notified to the Building Safety Regulator (BSR). Major changes to the documents will require BSR approval.
• A mandatory safety reporting procedure for major incidents.
• A requirement to maintain a golden thread of information in an electronic facility incorporating all approved documents from Gateways 1 and 2, the change control log, any mandatory occurrence reports, any notified changes in the principal designer or principal contractor and a draft Gateway 3. An additional requirement is that this data must be capable of being transferred in a format which is uncorrupted, readable, and intelligible to intended recipients.

Timescales For Implementation?

Broadly speaking, the amendments to the Building Regulations 2010 and the Approved Inspectors Regulations 2010 will not apply to building work started or where an initial notice has been given to a local authority and was accepted or treated as accepted before 1 October 2023.

There are complex transitional provisions in relation to the Higher-Risk Buildings Procedures Regulations 2023 which are beyond the scope of this article. If you have any questions, please feel free to contact me.

Wrapping Up

Many of the questions relating to the changes to the building safety regime will only become apparent as the new provisions bed in.

However, we do expect Regulators and the Courts to take a hard line on any breaches, so it is vital that your business fully grasps the changes and implements policies and procedures to ensure compliance.

To discuss any of the points raised in this article, please contact Stephanie Houston or fill in the form below.

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The Intersection of Construction Law and UK Immigration

In an increasingly globalised world, the construction industry in the United Kingdom has witnessed a surge in international talent contributing to its growth and development.

However, this influx of skilled workers has also led to complex legal issues at the intersection of construction law and UK immigration.

This article delves into the challenges and opportunities that arise when construction law and immigration law converge, providing insights for both construction companies and foreign workers seeking opportunities in the UK construction sector.

The Role Of Immigration Law In The Construction Industry

The UK construction industry heavily relies on a diverse workforce, often requiring skilled and unskilled labour from overseas to meet its demands.

To manage this flow of skilled workers, the UK government has established a set of immigration laws and policies that construction companies must navigate.

These laws determine who is eligible to work in the UK, the duration of their stay, and the conditions under which they can work. It is crucial for construction companies to stay informed about these changes to ensure compliance and avoid legal complications.

A Recent Construction Industry Training Board Report States:

‘The commitment of the CLC (Construction leadership council) to work with the Home Office to support government engagement with industry on the system will therefore be important.

Among employers that had either considered the PBS (Points Based System) or had used it, the view was that it was too time-consuming, slow-moving and expensive. Of the half of employers that claimed awareness, 48% suggested that they had poor knowledge of it and only 28% reported a good understanding’.

Tier 2 (General) Visa (Skilled Worker Visa): A Key Pathway For Construction Workers

One of the primary routes for overseas construction workers to enter the UK legally is through the Tier 2 (General) Visa (skilled worker visa). This visa category is designed for skilled workers who have received a job offer from a UK-based employer. Construction companies must obtain a sponsorship licence to hire foreign workers under this scheme. It is imperative for both employers and workers to understand the specific requirements, including the minimum salary threshold and English language proficiency, to secure and maintain this visa.

The following roles have been added to the Shortage Occupation List:

• Bricklayers
• Carpenters and joiners
• Masons
• Plasterers
• Roofers
• Roof tilers and slaters

Compliance With Right To Work Checks

Construction companies in the UK have a legal obligation to conduct right to work checks for all their employees, regardless of their nationality.

Failure to do so can result in severe penalties, including fines and imprisonment. These checks require employers to verify the identity and immigration status of their workers by examining relevant documents. To ensure compliance with immigration laws, construction companies must establish robust processes for conducting these checks and maintaining proper records.

Brexit And Its Impact On The Construction Industry

The United Kingdom’s exit from the European Union, commonly referred to as Brexit, has had a profound impact on immigration laws and the construction industry.

Free movement of labour within the EU ceased, affecting the ease with which European construction workers could work in the UK. As a result, construction companies now face additional administrative burdens when hiring EU nationals. Understanding the new immigration rules and ensuring compliance is essential to avoid disruptions in project timelines and maintain a skilled workforce.

Opportunities For International Contractors

While navigating the complexities of UK immigration laws can be challenging, international contractors can also benefit from the opportunities the UK construction sector offers.

The demand for construction services remains high, and skilled workers from overseas continue to play a crucial role in meeting this demand. With proper planning and adherence to immigration regulations, foreign contractors can establish a foothold in the UK market and contribute to its growth.

Conclusion

PBS plays an integral role in meeting construction’s fluctuating skills needs and the effective use of a sponsorship licence is now integral to its success.

The intersection of construction law and UK immigration presents both challenges and opportunities for construction companies and skilled workers alike. Staying informed about immigration laws, complying with right to work checks, and adapting to post-Brexit regulations are essential for success in the UK construction industry.

By understanding and navigating the legal landscape, construction companies and skilled workers can continue to contribute to the growth and development of the sector while ensuring compliance with UK immigration laws.

Our team at Quastels continue to act for construction companies and work closely with our construction team to provide employment and immigration support at a time when the shortage of labour is one of the key delay factors in construction projects. Our mobility solutions are designed to allow seamless integration with an entity’s need to complete a project on time.

To discuss any of the points raised in this article, please contact Jayesh Jethwa or fill in the form below.

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A Guide to Shari’ah Compliant Leases

With commercial real estate continuing to provide a popular asset class for Islamic investors, it is increasingly important for commercial property practitioners to be familiar with the interplay between the English legal system and Shari’ah law (Islam’s legal system).

In this article we look at specific considerations to take into account to make sure that a lease remains Shari’ah-compliant and appropriate for Islamic investors, both for the landlord granting the lease and for the tenant taking the lease (bearing in mind that one of the parties may not be familiar with the principles of Shari’ah law).

It is particularly important to consider Shari’ah principles in relation to leasing because leases are the main tool used in the implementation of Shari’ah-compliant transactions. To ensure that a transaction is Shari’ah-compliant, the property in question must be used for a purpose that is considered acceptable in Shari’ah. Therefore if a leased asset, such as a commercial building, is used for a non-Shari’ah compliant activity or product, then such leases cannot be accepted in Shari’ah.

Furthermore, there is a requirement in Shari’ah law that the landlord must be the one to maintain the leased property overall (subject to the exceptions set out below). This means that the landlord cannot pass structural maintenance obligations, or obligations such as responsibility for buildings insurance, to a tenant. This can cause difficulties where a building is subject to a lease of whole on a fully repairing and insuring basis where the landlord would usually expect the tenant to take on those responsibilities (and the tenant would usually like to retain control).

Landlord’s Obligations

Since the landlord, as the owner, enjoys the financial benefit of the property by receiving rental income, it must also undertake all the responsibilities consequent to the ownership of the asset, so as to ensure that the property is fit for the contracted purpose (as set out in the lease).

As the owner, the landlord is responsible for all major and structural maintenance of the property. As a result, if there is loss or destruction of, or damage to the whole or a substantial part, of the property making it unfit for the contracted use, this is borne by the landlord and results in the termination of the lease. It is important for the landlord to consider mitigating such risk by obtaining appropriate Shari’ah-compliant insurance (takaful).

In some cases, such insurance may be compulsory or a condition precedent where the landlord has obtained financing for the original acquisition of the property or where the tenant is taking out financing for the lease premium, although often the use of conventional insurance in the absence of competitively priced takaful is permitted.

Tenant’s Obligations

It is the responsibility of the tenant to use and maintain the property with care and in accordance with the nature of the asset.

It should be stipulated in the lease that the tenant may not use the asset in a manner that contravenes Shari’ah principles. Apart from major and structural maintenance (which must always be the landlord’s responsibility as stated above), the tenant is to be accountable for any deterioration to the property during its enjoyment of it, which is not the result of normal wear and tear.

The tenant is also to be responsible, at its own cost, for the performance of all ordinary maintenance and repair of the leased property as required. It must keep the property in good repair and condition and replace all missing, damaged or broken parts with parts of equal quality and value.

Assignment and Underletting

As referred to above, a landlord cannot lease a property for non-permissible activities and the lease should contain restrictions on underletting to non-Shari’ah compliant tenants.

Under Shari’ah law, so long as you are the owner of a freehold or leasehold interest, you have primary responsibility for ensuring that the premises are used in a way that does not contravene Shari’ah principles. In the case of an assignment of a lease, the usual position is the requirement for the tenant to obtain consent from the landlord before the assignment.

For a Shari’ah-compliant lease, it must be stipulated in the lease that consent will not be granted if the assignee is a non-Shari’ah compliant tenant.

If there is a situation where the lease is assigned to a non-Shari’ah compliant tenant then, depending on the scholar that is consulted, the property may be required to be sold immediately and the gross rent received from the date of the assignment until the date of disposal would be subject to purification, i.e., such amount would have to be donated to charity.

Conclusion

Although Shari’ah principles may appear to conflict with conventional notions of risk allocation between a landlord and a tenant, business transactions under Shari’ah law need to be based on partnership where each party shares in the risks and rewards of a venture, and Shari’ah-compliant leases will have an element of this spirit.

There are specific points which must be considered when drafting a Shari’ah-compliant lease, some of which will be different to the industry standard position and, inevitably, with less room for negotiation.

This is not only relevant for the investor who requires the transaction to be Shari’ah-compliant but also for the other party to the transaction who may have no prior experience with these principles.

It is important for both parties to engage a legal adviser with expertise in this area as early as possible in the transaction (ideally before finalising the heads of terms) so as to save time and costs in the long run.

To discuss any of the points raised in this article, please contact Naomi Jones or fill in the form below.

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