Wider changes to the building regulations to align the existing system with the new system

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Closes 12 Oct 2022

Introduction

As part of the new regime, we also intend to introduce a number of wider changes to building regulations as it is important that we have legislation which works for all building work - not just for higher-risk building work. This includes specifying that building control approvals, and notices which have been given, lapse automatically after three years if work has not started; defining commencement of work both for new builds and where certain building work is carried out in existing buildings; and replacing the current requirement to deposit plans with a new requirement to submit a building control approval application before commencing non higher-risk building work. 

Lapse of building control approval 

Section 36 (lapse of building control approval etc) of the Act amends sections 32 and 53A of, and Schedule 4 to, the Building Act 1984 (lapse of Building Control Approval) and makes equivalent amendments in Part 2 of the Building Act 1984. The following references to lapse of building control under section 32 include lapse of building control under section 53A and Schedule 4 as if references to applications for building control approval were references to initial notices and public body’s notices.  

This will mean that any application for building control approval made after new regulations come into force, will have three years to start building work from the date the application was made (provided the application was approved by the relevant building control body). If building work has not commenced by the end of three years from that date, the amendments to section 32 have the effect of automatically treating that building control approval as lapsed. Should a developer wish to commence the building work after the building control approval has lapsed, they will need to re-apply for building control approval and the building regulations which have effect at the date of that new application will apply to the building work. 

The Government’s intention has always been that building control approvals should lapse where work has not commenced within three years. Principally, because over time building regulations requirements are updated, for example, the 2021 uplift to energy efficiency standards, improved ventilation and new overheating requirement.  Under the current building control regime, approval does not however lapse automatically, instead after three years, the local authority has the power to issue a notice if the work has not commenced but in the absence of proactive action from the local authority to issue such a notice, the approval would continue indefinitely. 

This new provision remedies this and will ensure that building control approvals, initial notices, plans certificates, and public body’s notices and plans certificates, will lapse automatically rather than requiring a local authority to take proactive action to declare that approval has no effect, or to cancel the notice.  

In addition, under the current regime, if work starts on one building in a multi-building development, all the buildings in the development can benefit from the transitional arrangements.  This enables other buildings within that same project to be built to old regulatory standards, even where work has not commenced on those buildings.  

In response to emerging evidence around gaming of the system, when introducing higher energy efficiency, overheating and ventilation standards in 2021 in England, Government therefore strengthened the transitional arrangements in Circular guidance to specify that commencement was related to each individual building or building work, not at a site level, by adding the following to the guidance: 

“in some cases, applications will be in respect of a number of buildings on a site, for  example a number of houses. In such cases, it is only those individual buildings for  which work is commenced which can take advantage of the transitional provisions”.  

We are now going further and making it clear in law that such arrangements apply only to individual buildings within a multi-building development. Section 36 of the Building Safety Act 2022 provides that where the work relates to more than one building, and the work relating to one or more of the buildings has not commenced within the three-year time-limit, that the building control approval for those specific buildings will automatically lapse, even if work on the remainder of the site has commenced. This approach will again be supported by stronger, clearer definitions of ‘commencement’ of work. 

Defining commencement of work 

To ensure this works effectively, both industry and building control bodies require clarity and certainty as to when work is to be regarded as commenced. We therefore propose to make regulations using the power in section 32(6) of the Building Act 1984 (as amended) to determine what is meant by “commencement” of building work in different scenarios.  It says that “building regulations may make provision about when work, or work relating to a building, is to be regarded as commenced for the purposes of this section”. 

Commencement of work is also relevant to transitional periods under the building regulations. When a change to the building regulations is introduced, plans where building work has not commenced within a certain period are subject to the new uplifted requirements. Further details on the transitional arrangements for higher-risk buildings can be found below. 

Currently the Government provides guidance on the definition of commencement in Circular letters in England and Wales to support transitional arrangements attached to specific building regulations.  For example, the Government recently introduced requirements for Electric Vehicle Charge Points in certain settings, with a 12-month transitional period to allow developers who had commenced work to continue to their current plans.  At the end of that 12-month period, where work has not commenced, developers are required to include charge points.   

The Circular guidance that supports transitional provisions provides a list of what Government considers may or may not constitute commencement.  This currently says: 

In the Department’s opinion the commencement of work would usually be marked by work such as:

• excavation for strip or trench foundations or for pad footings;  

• digging out and preparation of ground for raft foundations;  

• vibro-floatation (stone columns) piling, boring for piles or pile driving; 

 • drainage work specific to the building(s) concerned.  

We consider that the following sorts of work would not be likely to constitute the commencement of work:

• removal of vegetation  

• demolition of any previous buildings on the site;  

• removal of top- soil;  

• removal or treatment of contaminated soil;  

• excavation of trial holes;  

• dynamic compaction;  

• general site servicing works (e.g. roadways)  

Circular Letter 

The Government is aware that the current approach to setting out what may or may not constitute commencement in circular letters is too open to interpretation and therefore gaming of the system whereby developers only need meet minimum requirements (for example digging one trench or laying drains), to demonstrate that work has ‘commenced’. In addition, as the approach to defining what may or may not constitute commencement is set out in guidance, rather than legislation, it is also difficult/impossible for building control authorities to enforce even where they have concerns that the threshold for commencing work has not been met.  

The Government intends to address this issue by clearly defining commencement of work in regulations. This will help ensure that a consistent approach is adopted and that building control bodies can enforce the lapse of building control approval after three years (or under transitional provisions where the new definition is applied in future) where they do not consider the definition has been met.  

We propose that separate definitions should apply to commencing work to create a new building and commencing building work in an existing building in recognising the potentially significant differences between the two as the latter can vary considerably in scale and nature.  

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