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Building Safety Act 2022

Contents

Schedule 3: Co-operation and information sharing 

The explanatory note for this Schedule is provided in the note for section 27. 

Schedule 4: Transfer of approved inspectors’ functions to registered building control approvers 

The explanatory note for this Schedule is provided in the note for section 43.

Schedule 5: Minor and consequential amendments in connection with Part 3 

  1. This Schedule contains amendments to the Building Act 1984 and other Acts, that are minor and consequential to measures in Part 3 of this Act.
  2. Paragraphs are grouped together where it is convenient to do so because they have similar effects or are pursuant to the same sections in the Act.

Paragraphs 2, 3, 4(2), 5(2), 6, 9(2)-(5), 9(7), 11(2)-(3), 12(2), 13(2),13(5)-(6), 14(2), 14(3)(b), 14(4)(b), 15(2)-(5)(a), 15(9), 16, 22(8), 46(2), 50, 53, 55(4)(a), 57(3)(a), 71, 78(2), 83(2), 83(9), 84(3)

  1. These paragraphs change references to the Secretary of State to "appropriate national authority" and/or make amendments consequential to this, including where regulations are to be made either by the Houses of Parliament or Senedd Cymru, in recognition that these functions are performed by, or powers fall to, the Secretary of State in England and Welsh Ministers in Wales and legislative competence lies with the Houses of Parliament in England and Senedd Cymru in Wales.
  2. "Appropriate national authority" is defined as the Secretary of State in England and Welsh Ministers in Wales in amended section 126 of the Building Act 1984. This is not a substantive change; instead, it reflects the true position in the Building Act 1984 since the transfer of Secretary of State functions to Welsh Ministers in a Transfer of Functions Order in 2009.

Paragraphs 4(3), 13(3), 21(2), 22(2), 23(2), 24(2), 25, 26(2), 27(2), 30(4), 32(2) and (6)(b), 33, 34, 35, 37, 39, 55(2), 55(4)(b), 55(5), 57(2), 61, 62, 63, 64, 65, 66, 68, 69, 70, 83(4), 84(2)

  1. These paragraphs do one of two things in recognition that functions previously performed by local authorities may now also be performed by the Building Safety Regulator:
    • They change references in the Building Act 1984 from "local authority" to "building control authority" to recognise that functions previously undertaken by local authorities may now be undertaken by the Building Safety Regulator and that the term "building control authority" covers both, as set out in new section 121A of the Building Act 1984, inserted by section 32; or
    • They insert references to the Building Safety Regulator alongside local authorities where the relevant provision includes or relates to the wider roles of local authorities and the Building Safety Regulator under the Act rather than the narrower role of building control authority.

Paragraph 5(3)

Effect
  1. This paragraph amends section 3 of the Building Act 1984 which deals with the exemption of prescribed classes of buildings, services, fittings or equipment from building regulations.
  2. The new section 3(2A) allows for the regulator in England to make a proposal to the Secretary of State for the giving, by the Secretary of State, of a direction to exempt a particular building or a particular class of building at a particular location. The new section 3(2B) requires the regulator to consult such persons as it considers appropriate before making a proposal. New section 3(2C) requires the Secretary of State to consult with the regulator, and any other person that the Secretary of State considers appropriate, before giving a direction, other than a direction proposed by the regulator. This mirrors the approach taken to regulations under the Building Act 1984 for England in new section 120B.
Background
  1. Under section 3(2) the Secretary of State may give a direction to exempt from all or any of the provisions of building regulations (as regards England) a particular building, or buildings of a particular class at a particular location, either unconditionally or subject to conditions. Under section 3(3) a person who contravenes or permits a direction given under subsection (2) to be contravened commits an offence and is liable to be fined.

    Example 1

    The regulator considers that the Secretary of State should give a direction under section 3(2) to exempt a particular class of buildings in England from specific building regulations’ requirements. The regulator considers it appropriate to consult with the Building Advisory Committee on this matter. After doing so, the regulator makes the proposal to the Secretary of State for the direction to be given. The Secretary of State assesses the matter and decides to give the direction without needing to consult because the regulator has already consulted.


    Example 2

    The Secretary of State, of his or her own accord, wishes to give a direction under section 3(2) exempting a particular class of buildings in England from specific building regulations’ requirements. The Secretary of State consults with the regulator and also considers it appropriate to consult with the Building Advisory Committee and other relevant stakeholders. After consulting, the Secretary of State considers it appropriate to give the direction and proceeds to do so.

Paragraphs 5(4), 14(7), 22(7) and 44(2)

  1. These paragraphs amend the penalties in section 3(3) of the Building Act 1984, which sets out the offence of contravening a direction by the Secretary of State in respect of exemptions from all or part of the building regulations: section 11(6) (breach of a direction by the Secretary of State dispensing with or relaxing a particular requirement of building regulations); section 20(7) (contravention of a condition imposed by a building control authority with respect to the use of a building or the proposed work on that building) and section 52(4) (failure to give a notice required under s52(3)).
  2. These paragraphs remove references to level 5 on the standard scale, as this has been abolished by section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and replaced with an unlimited fine. Paragraphs 5(4), 14(7) and 22(7) also increase the maximum daily fine for ongoing non-compliance from £50 to level 1 on the standard scale (currently £200), reflecting inflation since 1984.

Paragraphs 7, 41(2)(b)

  1. These paragraphs delete the reference to "building regulations" in section 5(3)(b) and section 48(1)(b) of the Building Act 1984 in recognition that new section 35 covers both contraventions of building regulations and also requirements imposed under building regulations, as set out in section 38. An example of a requirement imposed under building regulations could be a requirement imposed as part of a building control approval.

Paragraphs 8, 38, 49

  1. These paragraphs amend sections 5 and 58 of the Building Act 1984 consequential on new section 125A of the Act on the meaning of work (see paragraph 80). And paragraph 38 omits sections 44 and 45 which is consequential on new section 131A of the Act (see section 59 of this Act).

Paragraphs 9(6) and (8) and 10

Effect
  1. These paragraphs amend the existing powers in sections 6 and 7 of the Building Act 1984 which deal with the approval or withdrawal of approval of documents for purposes of building regulations.
  2. New section 6(5A) clarifies that transitional provisions can be included within notices approving Approved Documents, and the amendments to section 7 confirm which version of an Approved Document will be relevant to any legal proceedings, where there has been a revision.
  3. Under section 6(8), the appropriate national authority may designate a body for the purposes of approving documents by way of making an order. New section 6(5B) states that a designated body must now obtain the consent of the appropriate national authority before approving a document or a revised document, or withdrawing an approval.
  4. New section 6(9) confirms that an order designating a body may specify that the designated body may only issue or approve documents which relate to buildings of a prescribed description, work of a prescribed description or prescribed provisions of building regulations.
Background
  1. Approved Documents provide practical guidance on compliance with building regulations requirements. Currently there are Approved Documents to accompany each of the Parts of Schedule 1 to the Building Regulations (the functional requirements). No bodies are currently designated to approve documents.
  2. When changes are made to building regulations, a transitional period is usually provided to enable persons carrying out the work to become familiar with the new requirements.
  3. Section 7 provides that failure to follow guidance in an Approved Document can be relied upon as tending to establish liability if a contravention of building regulations’ requirements is alleged and conversely proof of following guidance in Approved Documents can be taken as tending to negative liability.

    Example

    The Secretary of State decides to designate the Building Safety Regulator as the body to approve documents to give guidance on Part B (fire safety) for the purposes of the building regulations in England. The Secretary of State must make an order to this effect (which is a statutory instrument). If there were some revisions that needed to be made to the guidance on Part B, the Building Safety Regulator will first need to obtain the consent of the Secretary of State before it can approve this revised document.

    The Secretary of State designates the Building Safety Regulator as the body to approve documents to give guidance on Part A (structure) for the purposes of the building regulations in England. The Secretary of State would like the Building Safety Regulator only to approve guidance about specific provisions detailed within Part A. The order made by the Secretary of State that designates the Building Safety Regulator to approve guidance about Part A may therefore explicitly state for instance that the Building Safety Regulator can approve documents in relation to A1 (loading) but not A2 (ground movement).

Paragraphs 11(4), 12(3)- (5), 13(4), and 18

  1. Paragraph 11(4) inserts new section 8(3A) into the Building Act 1984 to enable the Building Safety Regulator to issue, on application, dispensations or relaxations from requirements of building regulations where it is the building control authority. Where the Building Safety Regulator is the building control authority applications for dispensations or relaxations can only be made to it. Paragraphs 12(3)-(5) and 13(4) make consequential amendments to sections 9 and 10 of the Building Act 1984, which set out procedural requirements relating to the making and granting of applications for dispensations or relaxations. Paragraph 18 makes a consequential amendment to section 15 of the Building Act 1984.
Background
  1. Section 8 of the Building Act 1984 currently enables the Secretary of State, on application by the person undertaking the work, to issue dispensations or relaxations of building regulations’ requirements. It also allows building regulations to enable local authorities to exercise this power (which has been done through Regulation 11 of the Building Regulations 2010).

Paragraph 14(3)(a), 14(4)(a), 14(5), 14(6) and 14(8)

Effect
  1. This paragraph amends the existing powers in section 11 of the Building Act 1984 which deal with the relaxation of building regulations.
  2. The amendments made by paragraph 14(3)(a) and (4)(a) allow for an application to be made for a direction to vary or revoke a direction under section 11(1) (at present an application can only be made for a direction under section 11(1)).
  3. Paragraph 14(5) inserts new subsections (3A) to (3C) into section 11. New subsection (3A) allows the regulator to make proposals to the Secretary of State for the giving of a direction under section 11.
  4. New subsection (3B) provides that before making proposals to the Secretary of State, the regulator must consult such persons as it considers appropriate. Where the regulator proposes a direction to vary or revoke a section 11(1) direction, and the section 11(1) direction was given on application, the regulator must also consult the original applicant.
  5. New subsection (3C) provides that where the Secretary of State proposes to give a direction of his or her own accord, he or she must first consult the regulator, the original applicant (where the proposal is to vary or revoke a section 11(1) direction and that direction was given on application) and such other persons as he or she considers appropriate.
  6. Paragraph 14(6) inserts new subsections (4) and (5). New subsection (4) makes provision for consultation by the Welsh Ministers before they issue a direction. New subsection (5) confirms that a direction by the appropriate national authority must be published.
  7. Paragraph 14(8) changes the reference in section 11 to plans being deposited to an application for building control approval being made as under new paragraphs 1A and 1B of Schedule 1 to the Building Act 1984, inserted by section 33.
Background
  1. Under section 11 the appropriate national authority may either on application or of its own accord, make a direction to dispense with or relax a requirement of building regulations as regards a particular type of building matter, if the requirement is deemed to be unreasonable.

    Example 1

    The regulator considers that the Secretary of State should give a direction to relax the application of specific building regulatory requirements to a particular building matter in England, as it would be unreasonable for them to apply. Before making the proposal, the regulator considers it appropriate to consult with the Building Advisory Committee. Having consulted, the regulator proceeds to make the proposal. The Secretary of State considers the regulator’s proposal to be appropriate and gives the direction.


    Example 2

    The Secretary of State of his or her own accord wishes to give a direction to relax the application of specific building regulatory requirements to a particular building matter in England, as it would be unreasonable for them to apply. The Secretary of State first consults with the regulator and considers it appropriate to also consult with the Building Advisory Committee and external stakeholders. Having consulted on the matter, the Secretary of State considers it appropriate to give the direction and proceeds to do so.


    Example 3

    The regulator wishes to make a proposal to the Secretary of State to revoke a direction relaxing the application of building regulatory requirements to a building matter in England. The direction was originally granted by the Secretary of State on application by an individual. The regulator consults with the original applicant and considers it appropriate to also consult with the Building Advisory Committee and external stakeholders. Having consulted, the regulator proceeds to make the proposal. The Secretary of State considers the proposal made by the regulator and decides to give the direction.

Paragraph 15(5)(b), (6), (7), (8), (10)

Effect
  1. This paragraph amends the existing powers in section 12 of the Building Act 1984 which deal with approving types of building matters.
  2. Paragraph 15(6) and (7) amends section 12 to allow for the appropriate national authority to revoke a certificate issued under section 12(3) on application (at present there is no option for a person to make an application for revocation of a certificate).
  3. Paragraph 15(8) inserts new subsections (8A)-(8D). New subsection (8A) allows the regulator to make proposals to the Secretary of State for approvals to be given, and for approval certificates to be varied or revoked under sections 12(6) and 12(8), in England.
  4. New subsection (8B) provides that before making a proposal to the Secretary of State, the regulator must consult with such persons as it considers appropriate. If the proposal is to vary or revoke a certificate issued on an application under subsection (1), the regulator must also consult with the original applicant.
  5. New subsection (8C) provides that before giving an approval or varying or revoking a certificate under this section, unless acting on a proposal of the regulator, the Secretary of State must consult with the regulator and any other person the Secretary of State considers appropriate. Before varying or revoking a certificate issued on an application under subsection (1), the of Secretary of State must also consult with the original applicant.
  6. New subsection (8D) preserves the current consultation requirements for the Welsh Ministers.
  7. Paragraph 15(5)(b) makes a minor change consequential on the subsections described above.
  8. Paragraph 15(10) changes the reference in section 12 to plans being deposited to an application for building control approval being made as under new paragraphs 1A and 1B of Schedule 1 to the Building Act 1984, inserted by section 33.
Background
  1. Under section 12 the appropriate national authority may approve a particular type of building matter as complying with requirements of the building regulations, either on application or of its own accord.

    Example 1

    The regulator decides to make a proposal to the Secretary of State for the approval of a particular building matter as being compliant with relevant building regulatory requirements in England. Before making proposals to the Secretary of State, the regulator considers it appropriate to consult with the Building Advisory Committee and external stakeholders. Having consulted, the regulator proceeds to make the proposal. The Secretary of State reviews the proposal and issues a certificate approving the matter.


    Example 2

    An individual makes an application to the Secretary of State to vary an approval certificate that was issued on application. The Secretary of State consults with the regulator and the original applicant and considers it appropriate to also consult with the Building Advisory Committee. Having consulted, the Secretary of State decides to vary the certificate and publishes a notice of the variation.

Paragraph 17

Effect
  1. Section 9 abolishes the Building Regulations Advisory Committee for England (BRAC) as established under section 14 of the Building Act 1984. This paragraph repeals subsections 14(1)-(4) which deal with the establishment of BRAC, payment of the committee’s expenses and requirement for the Secretary of State to consult with BRAC and other bodies before making building regulations.
  2. Paragraphs (3) and (4) make minor amendments to the requirements for Welsh Ministers to consult the Building Regulations Advisory Committee for Wales (BRACW).
  3. Other requirements for consultation are set out in new sections 120B and 120C of the Building Act 1984 (see paragraph 77).
  4. This paragraph also inserts the heading "Wales" above remaining subsections (5)-(8), which deal with the establishment of BRACW, and which are not being repealed.

Paragraphs 19, 21(3)-(5), 22(3)-(6), 23(3)-(4), 24(3), 26(3)-(4), 27(3)-(5), 29, 32(4)(b)-(e), 32(6)(d), 40(2), 41(3)(a)-(c), 42(2), 43(a)-(c), 46(3), 55(3)

  1. These paragraphs make amendments to the Building Act 1984 pursuant to the introduction of new paragraphs 1A and 1B into Schedule 1 of the Building Act 1984 under section 33 of the Act. New paragraphs 1A and 1B will be used to make building regulations to set out new requirements for applications, including applications for building control approval which will replace current arrangements for the deposit of plans of building work. These amendments replace references to the deposit of plans with references to the making of applications for building control approval or make similar consequential amendments.

Paragraphs 20, 28, 79

  1. These paragraphs repeal sections 16, 17, 31 and 124 of the Building Act 1984 pursuant to the introduction of new paragraphs 1A, 1B and 1C into Schedule 1 of the Building Act 1984 under section 33. New paragraphs 1A and 1B contain powers for building regulations to set new requirements for applications, including applications for building control approval, which will replace current arrangements for the deposit of plans of building work, and for the approval of changes to the work covered by the original building control approval. New paragraph 1C provides powers for building regulations to make provision about the giving of certificates.
Background
  1. Section 16 of the Building Act 1984 makes provision for the deposit of plans of building work with local authorities. Section 17 makes provision with regard to the approval of persons to give certain certificates. Section 31 makes provision for departures from deposited plans. Section 124 defines deposit of plans in relation to section 16.

Paragraph 30(2)-(3)

Effect
  1. This paragraph amends section 33 of the Building Act 1984 to specify that tests carried out, or required to be carried out, by building control authorities can be carried out not just in connection with the work, but also the building on which the work is to be carried out. Further, the paragraph inserts new subsection (3A) to specify that the tests may involve the cutting into or laying open of work or buildings, or the pulling down of work.
Background
  1. Section 33 makes provision to enable building control authorities to require persons undertaking work to carry out tests, or to carry out tests themselves of building work or conformity with building regulations’ requirements.

Paragraphs 31, 45 and 86

  1. Paragraph 31 repeals section 35A of the Building Act, which is no longer needed as the section 35 offence as substituted by section 39 is triable either way and therefore not subject to the time limits on bringing prosecutions in summary-only offences, to which section 35A makes an exception.
  2. Paragraphs 45 and 86 consequentially repeal subsections (6) and (6A) of section 53 and paragraph 4(6) of Schedule 4 to the Building Act 1984.

Paragraphs 32(3), (4)(a), (5), (6)(a) and (c)

  1. Paragraph 32(3) amends section 36 of the Building Act 1984 (which creates a power for building control authorities to require rectification of non-compliant work) to mirror the expansion of the offence in section 35 to cover requirements imposed under building regulations as well as building regulations themselves.
  2. Paragraph 32(4)(a) is a tidying-up amendment which reflects the correct legal position.
  3. Paragraph 32(5) ensures that the protection against enforcement in section 36(5) will not apply in respect of higher-risk building work. It also confirms that the protection only applies where the work is done in accordance with agreed plans and requirements imposed by the building control authority, including requirements imposed under sections 19-25 of the Building Act 1984 (which are the only sections of the Act under which the building control authority can impose requirements upon granting building control approval).
  4. Paragraph 32(6)(a) is a minor amendment consequential on new sections 35B and 35C (compliance and stop notices).
  5. Paragraph 32(6)(c) is a minor amendment which provides that certain provisions of the Building Act 1984 do not affect the right of the Counsel General to the Welsh Government to apply for an injunction on the ground that any work contravenes provision made by or under that Act.
  6. The paragraph also makes a number of changes to terminology to reflect new terminology which will be used elsewhere in the Act, e.g. replacing "deposit of plans" with "application for building control approval".

Paragraphs 36 and 52

  1. These paragraphs clarify that the ability to appeal a decision of a magistrates’ court to a Crown Court covers decisions relating to provisions in regulations made under the Building Act 1984 as well as the Act itself.

Paragraphs 40(3) and 42(3)

  1. These paragraphs are consequential to new section 101A "Appeal: refusal to consider application etc on ground is higher-risk building work" which is inserted by paragraph 30 of Schedule 6. Further detail is provided in the explanatory note for that paragraph.

Paragraph 41(2)(a)

  1. The amendment set out in paragraph 42(2)(a) in respect of section 48(1)(a) of the Building Act 1984 extends the existing protection from enforcement action where an initial notice is in force. That protection is extended from the issue of a notice requiring the removal or alteration of offending work under section 36 of the Building Act 1984 to include the new compliance and stop notices described in new sections 35B and 35C, inserted by section 38. Protection against prosecution under section 35 remains as at present, in section 48(1)(b).

Paragraphs 41(3)(d), 43(d)

  1. These paragraphs amend sections 48(2) and 51B of the Building Act 1984 to clarify the effect of the automatic lapse of an initial notice, or an amended initial notice, after three years if work has not commenced, pursuant to section 36.

Paragraph 44(3)

  1. Paragraph 45(3) amends section 52 of the Building Act 1984, consequential on the insertion of new section 52(5A) by section 50(5).

Paragraph 47

  1. Paragraph 47 amends section 56(3) of the Building Act 1984 and is consequential on the repeal of section 16 of the Building Act 1984 (provided for by paragraph 20 of Schedule 5 to this Act).

Paragraph 48(2)

  1. This paragraph amends section 57 of the Building Act 1984 to specify that the offence of giving a notice or certificate that purports to comply with certain requirements but is false or misleading covers notices or certificates given under building regulations, which have been designated for the purposes of section 57.

Paragraph 48(3)

  1. This paragraph reflects the abolition of the statutory maximum for summary fines by section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Paragraph 51

  1. This paragraph amends section 78(7) of the Building Act 1984 on emergency measures for dangerous buildings to remove the reference to subsection (3) of section 106. This subsection concerns disputes in regard to compensation, and has been removed (see paragraph 67 below).

Paragraph 54

  1. This is a minor amendment consequential on the changes to section 91 in section 32 .

Paragraphs 55(6) and 57(3)(b)

  1. These paragraphs are consequential to the insertion of new section 120A into the Building Act (see paragraph 77).

Paragraph 56

  1. New section 91B sets out cooperation requirements for specified functions of Welsh Ministers, Welsh fire and rescue authorities, fire inspectors (as defined within this section) and local authorities in Wales.
  2. New section 91B also creates information sharing gateways between Welsh Ministers, local authorities in Wales, fire inspectors and fire and rescue authorities in Wales for the listed functions, and a power for the Welsh Ministers to expand the list of functions (in relation to local authorities and fire and rescue authorities) in building regulations.
  3. 91B(8)-(9) mirror the equivalent provision for England (see section 27).

Paragraphs 58 and 59

  1. These paragraphs amend the provisions in section 94 of the Building Act 1984 dealing with service of documents under that Act to modernise the provision, provide for service on an authorised officer of the regulator, and to make clear that electronic service of documents by email is acceptable when both parties have agreed to that.

Paragraph 60

Effect
  1. This paragraph amends section 95 of the Building Act 1984 in line with paragraph 3 of Schedule 2 to this Act, in that it requires a local authority building control officer to obtain a warrant from a justice of the peace before making entry without consent to premises that are wholly or mainly used as a private dwelling.
Background
  1. Chapter 1 of Part 3 of the Protection of Freedoms Act 2012, in particular the code of practice issued under section 47 of that Act, sets out the principle that entry to private premises for regulatory purposes should generally only be made where it has been authorised in advance by a justice of the peace, or the occupier consents. This provision, together with paragraph 3 of Schedule 2 to this Act, provide for that in respect of the functions in the Building Act 1984 and this Act.

Paragraph 67

  1. This paragraph amends section 106 of the Building Act 1984 to remove the ability to go to a magistrates’ court to have compensation determined where the compensation figure does not exceed £50.

Paragraph 72

Effect
  1. This paragraph amends section 112 of the Building Act 1984 in line with section 23 of this Act, in that it increases the maximum penalty for obstructing a local authority building control officer from level 1 (currently £200) to level 3 (currently £1000). It carves out authorised officers of the Building Safety Regulator from the obstruction offence, given the creation of the offence of obstructing an authorised officer in section 23.
Background
  1. This paragraph, along with section 23, mirrors similar provisions supporting staff of other regulatory bodies such as the Food Standards Agency, Financial Conduct Authority and the Health and Safety Executive. The current penalty for obstructing a local authority building control officer is very low compared to these other regulators, and indeed the offence of obstructing an authorised officer of the regulator in section 23, hence this provision increasing it accordingly.

Paragraph 73   

  1. This paragraph allows the Building Safety Regulator in England and Welsh Ministers and the Counsel General in Wales to prosecute offences under the Building Act 1984 in the same way as a local authority.

Paragraph 74 

  1. This paragraph amends section 119 of the Building Act 1984 to enable the Building Safety Regulator as well as the Secretary of State in England, and Welsh Ministers in Wales, to hold local inquiries on any matter where they make a determination or order, or give a consent or approval under the provisions of the Building Act 1984. Inquiries held using this power will be held in accordance with the provisions of section 250 of the Local Government Act 1972.

Paragraphs 75, 76(2)-(3)(a), 77, 85

Effect
  1. Paragraph 77 inserts new sections 120A, 120B and 120C (as to which see below) into the Building Act. New section 120A sets out provision for regulations made under the Building Act which are not building regulations. These can be made by the appropriate national authority (the Secretary of State in England and Welsh Ministers in Wales) in most cases, although a few are England-only or Wales-only (see the explanatory notes for the sections in question). Regulations to which this section applies are those made under sections 54A, 55, 56A, 56B, 90A, 91A, 92, 105B, 105C, 120D, 120I and 125A.
  2. Subsection (2) of new section 120A allows regulations to include incidental, transitional or savings provisions, and for those regulations to make different provision for different purposes or different areas. Subsection 3 mirrors provision in section 34 of the Building Act 1984 to confirm the various ways in which buildings can be categorised in regulations.
  3. Subsections (4) and (5) allows for regulations made under sections 54A and 90A to make consequential amendments to the Building Act.
  4. Subsections (7) and (8) set out the procedures for regulations applying to England in the Houses of Parliament. Regulations made pursuant to new sections 54A, 90A, 105C, 120D(2)(b), 120D(4)(c), 120D(6) or 125A will be made using the affirmative procedure. Other regulations will use the negative procedure.
  5. Subsections (9) and (10) set out the procedures for regulations applying to Wales in Senedd Cymru. Regulations made pursuant to new sections 54A, 120I(2) or 125A will be made using the affirmative procedure. Other regulations will use the negative procedure.
  6. Paragraphs 75 and 76 make minor and consequential changes to section 120 of the Building Act 1984.
  7. New section 120B gives the Building Safety Regulator the ability to suggest proposals to the Secretary of State for the making of regulations under the Building Act, including building regulations, applying to England. It requires the Building Safety Regulator to consult with persons that it considers appropriate before making a proposal to the Secretary of State.
  8. It also requires the Secretary of State to consult with the Building Safety Regulator and any other persons that the Secretary of State believes are appropriate, before making regulations that have not been proposed by the Building Safety Regulator.
  9. This mirrors section 7 which deals with regulations under Parts 2 and 4 of the Act. As with that section, it does not apply to regulations dealing with the scope of the higher-risk regime, as they have their own procedure (see new section 120E, inserted by section 31).
  10. Paragraph 85 is a consequential amendment to Schedule 3 of the Building Act 1984.
  11. New section 120C sets out that, before making any regulations under this Act except building regulations (which are dealt with in section 14) or regulations under section 120I, Welsh Ministers must consult such persons as they consider appropriate. Before making regulations under section 120I, Welsh Ministers must consult the Building Regulations Advisory Committee for Wales, and any other person that the Welsh Ministers consider appropriate.
Background
  1. Although most of the secondary legislation made under the Building Act will be building regulations, there will be some which will not because their subject matter does not fall within the scope of building regulations. These are regulations on public bodies and higher-risk building work (section 54A); establishment of registers (sections 55, 56A, 56B and 91A); certain appeals (section 55); the allocation of functions under Part 3 of the Building Act 1984 (section 90A); forms of notices or other documents (section 92); fees and charges because these may cover functions under the Act which do not relate to building regulations (section 105B); the imposition of a levy (section 105C); the meaning of higher-risk building in the Building Act (section 120D for England and section 120I for Wales); and the meaning of work in the Building Act 1984 (section 125A).
  2. New section 120B replaces sections 14(3) and (4) of the Building Act 1984 which previously set out requirements for consultation on proposals for building regulations in England.

    Example

    The Building Safety Regulator considers that new building regulations relating to Part B (fire safety) are required and should be recommended to the Secretary of State. The Building Safety Regulator must first consult with persons that it considers appropriate, such as the public, on the regulations to be made. Once the Building Safety Regulator has consulted with the relevant persons, it may then make a proposal to the Secretary of State on the building regulations to be made.

    The Secretary of State wishes to make building regulations relating to Part A (structure), where proposals in relation to these regulations have not been put forward by the Building Safety Regulator. The Secretary of State must first consult with the Building Safety Regulator and any other persons that they believe are appropriate, such as the public and external stakeholders. Once the Secretary of State has consulted with the Building Safety Regulator and appropriate persons, they may then make the regulations.

Paragraph 78(3)

  1. This paragraph amends section 121 of the Building Act 1984, consequential to new section 120D of the Building Act, inserted by section 31, which defines a higher-risk building in England (section 120D) and in Wales (section 120I). Section 121 includes a broad definition of a building and paragraph 78(3) provides that this has no effect in relation to sections 120D and 120I, to avoid any confusion between the definitions.

Paragraph 80

Effect
  1. Paragraph 80 inserts a new section 125A into the Building Act. Section 125A(1) makes clear that where the term "work" is used in the Act, this encompasses a material change of use, other than for a few exceptions. This gloss on the term "work" already appears in a number of places in the Act (see, for example, section 58(2)). Section 125A consolidates these existing glosses, which will be repealed as a consequence, and extends the gloss to a few additional and new provisions in the Act. New section 125A(1) provides powers to set out in building regulations exactly what is to be encompassed within a change of use; this replicates the existing power in paragraph 8(1)(e) of Schedule 1. The exceptions to the gloss, which are listed in new section 125A(3) cover provisions in the Act where it is clear that the term "work" is not intended to, or cannot, because of the context, include a change of use.
  2. New section 125A(2) provides reserve powers for regulations to prescribe other matters which might be covered by the term "work" in the provisions in subsection (3). This is because there may be circumstances where the Act and building regulations should apply but which may not fall within a common understanding of the term "work", for example, because physical work may not be involved, such as change to energy status (see Regulation 22 of the Building Regulations 2010). These regulations will be subject to the affirmative procedure.
Background
  1. There are a number of references in the Building Act to work including a material change of use, as described above. The intention with new section 125A is to have a single provision covering this matter for the Act as a whole.
  2. Regulation 5 of the Building Regulations 2010 sets out the specific operations which are currently covered by the term "material change of use".

Paragraph 81

  1. This paragraph inserts new definitions into section 126 of the Building Act 1984 ("General interpretation"), and removes the definition of "relevant period" consequential to the repeal of section 16.

Paragraph 76(3)(b)-(c), 82

  1. Paragraph 82 provides, subject to some exceptions, that the power to make commencement orders in relation to Wales under the Building Act 1984 sits with Welsh Ministers.
  2. Paragraph 76(3)(b)-(c) makes consequential amendments to section 120.

Paragraphs 83(3), (5)-(8)   

  1. This paragraph makes amendments to Schedule 1 of the Building Act 1984:
    • consequential to the taking of new powers in sections 32 and 56 (subparagraphs (3), (5) and (7));
    • consequential to the definition of work in new section 125A (subparagraph (6)(a));
    • to enable building regulations to set requirements related to the conservation of fuel and power for buildings of a prescribed description (subparagraphs (6)(b) and (c)); and   
    • to clarify that building regulations may include supplementary, incidental, transitional, transitory and saving provisions, and may make different provision for different purposes or areas, including different provision for higher-risk buildings and higher-risk building work (subparagraph (8)).

Paragraphs 87, 88

Effect
  1. These paragraphs amend the Parliamentary Commissioner Act 1967 and Freedom of Information Act 2000 to reflect the abolition of the Building Regulations Advisory Committee for England (BRAC).
Background
  1. The establishment of the new Building Advisory Committee has resulted in the abolition of the Building Regulations Advisory Committee for England. In line with this, provisions within the Building Act 1984, Parliamentary Commissioner Act 1967 and Freedom of Information Act 2000 which make reference to BRAC are removed by these paragraphs.
  2. BRAC was subject to the Freedom of Information Act 2000 in its own right. This paragraph repeals the reference to BRAC in Part VI of Schedule 1 to the Freedom of Information Act 2000. BRAC was also subject to oversight from the Parliamentary Commissioner for Administration, under the Parliamentary Commissioner Act 1967. This paragraph repeals the reference to BRAC in Schedule 2 to that Act.
  3. As the Building Advisory Committee is part of the Health and Safety Executive, it will be subject to the Freedom of Information Act 2000 as part of the Health and Safety Executive rather than independently (the Health and Safety Executive appears in Part VI of Schedule 1 to the Freedom of Information Act 2000). The Building Advisory Committee will also be subject to the Parliamentary Commissioner Act 1967 as part of the Health and Safety Executive rather than independently (the Health and Safety Executive appears in Schedule 2 to the Parliamentary Commissioner Act 1967).

Paragraph 89

  1. This paragraph repeals subsections (8) and (9) of section 3 and subsection (4) of section 4 of the Sustainable and Secure Buildings Act 2004, consequential to new section 125A of the Building Act and to the omission of section 44 and 45 of the Building Act 1984 (see paragraph 38 of Schedule 5 to the Act).

Paragraph 90

  1. This paragraph repeals article 45 of the Fire Safety Order and makes a consequential amendment to article 52(1).
Background
  1. Article 45 of the Fire Safety Order requires local authorities to consult Fire Safety Order enforcing authorities before approving plans of building work deposited with them.

    Example

    New paragraph 1A of Schedule 1 to the Building Act, inserted by section 33, provides powers for building regulations to prescribe arrangements for prescribed bodies such as Fire Safety Order enforcing authorities to be consulted by prescribed bodies such as building control authorities. The requirements of article 45 will be replaced by new building regulations which will set out required consultation arrangements between building control authorities and Fire Safety Order enforcing authorities.

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