COMMENT For building owners with mixed-use assets, the new building control regime for higher-risk buildings presents challenges which the current law and process is not nuanced enough to handle, leading to potential penalties and uncertainty.
By now, owners of higher-risk buildings are well-aware of their obligations under the Building Safety Act 2022. This defines higher-risk buildings as those with at least two residential units and which are at least 18 metres in height or have at least seven storeys. Certain uses are specifically exempt from the regulations.
However, owners of such buildings may not be aware of the more onerous and time-consuming building control regime they may need to adhere to when refurbishing commercial units that are contained within higher-risk buildings, or buildings that may become so following planned works.
Where works require consent from the Building Safety Regulator, the Building Safety Act requirements can currently mean delays of up to four months, compared with the usual more expeditious time frame through the usual approved inspector or local authority channel.
This includes building work to an existing building which will make it a higher-risk building (for example adding storeys) or a building undergoing a change of use.
In particular, the Building Safety Act contains provisions for building control procedures that apply to building work to an existing higher-risk building; building work to a non-higher-risk building that results in it becoming a higher-risk building (such as converting a five-storey residential building to a seven-storey residential building); and a material change of use that results in it becoming a higher-risk building (such as an office-to-residential conversion).
Extra hurdles – and some exemptions
The building control approval process applying to higher-risk buildings requires approval from the Building Safety Regulator for works to commence. The extra hurdles can come into play for seemingly minor or unrelated works, such as refitting a ground-level retail space, or a Cat-A office refurbishment, which may require Building Safety Regulator consent due to shared structure and interlinked staircases.
It is worth bearing in mind that there are exemptions where the unit has no direct access into other parts of a building containing residential elements (ie no shared staircases, etc) or where the structure is wholly independent. There are also special arrangements around certain in-process projects that qualify for transitional provisions, which allow projects to remain under the previous building control regime.
Factoring in new timescales
In practice, building owners need to factor this potential three- to four-month application timescale into project programmes, while also ensuring that they have an expert team to prepare robust information and submissions to avoid any further delays. When dealing with potential or existing occupiers, the knock-on effect is that building owners also need to consider the implications of approval timescales for any relevant heads-of-terms or agreement-to-lease considerations.
The building cannot be occupied until a completion certificate has been issued, and in order to receive the completion certificate the client must demonstrate that the works have been carried out according to the approved plans.
Additionally, contractors’ appetite for this process is likely to diminish, with many now unlikely to accept responsibility for gaining building control approval. Development funding agreements and building contracts may now need to factor this in.
This is particularly important for purpose-built student accommodation developments, which typically aim to achieve practical completion towards the end of August, allowing occupation for the academic year. The new regime will have an impact on this time frame, and developers will need to plan the construction work to complete much earlier, for example anywhere between April and June.
Matthew Osborne is a partner and fire advisory lead at Workman
