New commencement and transitional regulations supporting the Building Safety Act 2022 (WGC 002/2024)

Circular number:    WGC 002/2024

Date issued:    26/02/2024

Status:    For information

Title:    New commencement and transitional regulations supporting the Building Safety Act 2022

Issued by:    Kevin Davies, Building Control Competence & Standards Officer

Addressed to:    

Local Authority Chief Executives
Welsh Local Government Association 
Association of Corporate Approved Inspectors

Please forward to:

Local Authority Building Control Officers
Members of the Senedd
The Building Safety Regulator; LABC; CABE; RICS; ABCA, CIOB

Summary:

This is a circular letter that notifies the Building Control sector of commencement regulations made under the Building Safety Act 2022 for Wales and transitional provisions for the period 6 April 2024 to 1 October 2024, partly for allowing Building Inspectors to continue working while they are going through the competence verification process.

For further information contact:

Building Regulations Team
Welsh Government Offices
Cardiff
CF10 3NQ  

Direct Line:    Tel:    0300 060 4400
E-mail:    enquiries.brconstruction@gov.wales
Website: Building and planning 

1. I am directed by the Welsh Ministers to draw your attention to the changes introduced by the following Regulations which come into force on 6 April 2024:

   The Building Safety Act 2022 (Commencement No. 4 and Transitional and Saving Provisions) (Wales) Regulations 2024

2. The purpose of this Circular is to draw attention to the new secondary legislation and explain the changes it introduces.

3. This Circular letter applies to buildings and building work in Wales, as well as building control professionals operating in Wales. 

4. Regulation 12 introduces transitional provisions allowing building inspectors more time to complete their verification of competence at the level appropriate to the work that they intend to carry out. Provided that building inspectors are registered as a minimum of Class 1 by 6 April 2024, they will be able to carry out restricted activities and functions.

This is providing they are undergoing, or have completed, competence assessment at the required level. If a competence assessment is unsuccessful, an RBI would be restricted to work at the level they are registered at. This will apply until (but not including) 1 October 2024. Please see paragraph 20 for more details.

5. Regulation 2(d)(i) commences section 40 of the Building Safety Act 2022. This section inserts new section 112A into the Building Act 1984 which provides that, where a corporate body commits a criminal offence under that Act, any director, manager, secretary or other similar officer of that body is also deemed to have committed that offence in certain circumstances. Those circumstances are where the individual has consented to or connived in the commission of the offence or where the offence is attributable to any neglect on their part.
    
6. There are several transitional provisions relating to higher-risk building work. Regulation 11 (see paragraph 19) provides that all new higher-risk building work from 6 April 2024 will be overseen by local authorities.

Regulation 3 enables Registered Building Control Approvers (“RBCAs”) to continue to work on existing higher-risk building projects subject to transitional arrangements. See paragraph 13 for more details. 

Regulation 4 provides that Approved Inspectors who do not become RBCAs cannot oversee higher-risk building work from 6 April 2024. See paragraph 14 for more details. 

The Building Safety Act 2022 (Commencement No. 4 and Transitional and Saving Provisions) (Wales) Regulations 2024

7. These Regulations make provision to ensure the new building control regime will begin on 6 April 2024.  The Regulations also establish a transitional period running from the 6 April 2024 until 1 October 2024.
    
8. Regulation 2 causes the following provisions from the Building Safety Act 2022 to come into force on 6 April 2024:
   1. section 32(3) (building control authorities), for all remaining purposes, so far as it relates to section 91ZD of the 1984 Act.
   2. section 42 (regulation of building control profession), so far as it relates to inserting section 58Z2 into the 1984 Act.
   3. paragraph 56 of Schedule 5.
       
9. It also causes the following provisions to come into force in relation to Wales only on the same date:
    
   1. section 40 (liability of officers of body corporate).
   2. section 42 (regulation of building control profession), for all remaining purposes, except so far as it relates to section 58Z7 of the 1984 Act and inserting section 58Z2 into the 1984 Act.
   3. section 43 (transfer of approved inspectors’ functions to registered building control approvers).
   4. section 44 (functions exercisable only through, or with advice of, registered building inspectors), for all remaining purposes.
   5. section 46 (higher-risk building work: registered building control approvers), for all remaining purposes.
   6. section 50 (cancellation of initial notices), for all remaining purposes.
   7. section 51 (new initial notices), for all remaining purposes.
   8. section 52 (information gathering), for all remaining purposes.
   9. section 53(2) and (3)(a)(ii) and (iii) and (3)(b) (information). 
   10. Schedule 4.
   11. Schedule 5 (minor and consequential amendments in connection with Part 3 of the 2022 Act), except paragraphs listed in the Schedule and subject to the exceptions in section 170(4)(b)(viii)(A) and (B). 
   12. Schedule 6 (appeals and other determinations), for all remaining purposes (subject to the exceptions in section 170 (4)(b)(ix) of the 2022 Act).
        
10. The commencement of these provisions will allow for the new regime of building control and the registration system for RBIs and RBCAs to be effective in Wales.
     
11. Under the new building control regime, RBCAs will no longer be permitted to perform building control functions relating to higher-risk building work in Wales, however some transitional provisions have been agreed to allow for the smooth functioning of industry.
     
12. Regulations 3 to 7 are transitional provisions which will allow, in specific circumstances, an Approved Inspector (“AI”) to continue to oversee existing building work once the new RBCA regime begins on 6 April 2024 in Wales.
     
13. Regulation 3 outlines the situation and implications where, before 6April 2024, an AI became a RBCA, and submitted, and had accepted, an initial notice relating to higher-risk building work. In that situation, so long as the building work has commenced before or within the transitional period, and the RBCA continues to be suitably qualified and registered to perform those functions, they can continue to perform building control functions overseeing higher-risk building work for the duration of the project.
     
14. Regulation 4 outlines the situation where an AI does not become a RBCA. If an AI has not become a RBCA on or before 6 April 2024, they may no longer oversee higher-risk building work on or after 6 April 2024. In that case, responsibility for any higher-risk building work they had been overseeing will revert to the local authority on 6 April 2024. Any initial notices submitted by the AI in respect to this work will be cancelled. The regulation allows for an AI that has not become an RBCA to continue to oversee work that is not higher-risk building work until 1 October 2024. On that date, any initial notices will be cancelled. Any building work that is still ongoing at that point will be transferred to the local authority, if it has not already been transferred to a different RBCA. Until 1 October 2024, the AI may continue to issue plans certificates, final certificates and amendment notices in relation to projects they are overseeing. However, if an amendment notice is issued before that date which would change the nature of the work in an initial notice so that it becomes higher-risk building work, that work must be transferred to the local authority.
     
15. Regulations 5, 6 and 7 allows for multiple sections of the Building Act 1984, as modified by sections 46, some parts of Schedule 4, and some parts of Schedule 6 of the Building Safety Act 2022 to be read as if references to RBCAs were references to AIs. These provisions are in effect until but not including 1 October 2024.
     
16. Regulation 8 sets out that where an initial notice was accepted for higher-risk building work, but work has not commenced before 1 October 2024 then the initial notice relating to that work, and any plans certificates relating to that work, will cease to be in force on 1 October 2024.
     
17. Regulation 9 sets out a requirement that where higher-risk building work has commenced but the initial notice is later cancelled, responsibility for the higher-risk building work will transfer to the local authority from the date on which the initial notice is cancelled.
     
18. Regulation 10 allows for a different RBCA to submit an initial notice for work that is not higher-risk building work if an AI or RBCA cancels the original initial notice before 1 October 2024.
     
19. Regulation 11 sets out the requirement that all new higher-risk building work must be overseen by the local authority from 6 April 2024. It prohibits initial notices for higher-risk building work from being submitted to local authorities by RBCAs or AIs from this date. This regulation does not affect higher-risk building work where an initial notice has already been accepted, or deemed to have been accepted before this date.
     
20. Regulation 12 sets out our transitional provisions for permitting building inspectors who have not yet completed verification of competence in their desired class, to continue to work on projects between 6 April 2024 and 1 October 2024. This means that building inspectors will be able to carry on working provided that:
     
    1. They are registered as a minimum as a Class 1 inspector with the Building Safety Regulator (BSR) by 6 April 2024, and
    2. They are in the process of having their competence assessed to the level at which they intend to work or have completed assessment at the required level and are waiting to have their registration varied, and
    3. They haven’t failed their competence assessment at the level appropriate for their work.

For those that have failed their competence assessment, they will be able to work under supervision (i.e. at the class they are registered at) until such time that they successfully complete their competence assessment and vary their RBI registration. In other words, the transitional arrangements would no longer apply to them. This supervision would need to be conducted by someone who has already had their competence verified to the appropriate class for the work being carried out, or be someone who meets the criteria of this transitional arrangement.

In cases where a person has failed their assessment at their desired level but has achieved a lower class, they are permitted to continue to work on building projects in line with that lower class without the same requirement for supervision.

Inspectors are reminded that it is free to vary their registration with the BSR once they have completed their competence assessment at the required level. This will need to be done by 1 October 2024. 

21. Regulation 13 is a saving provision that allows section 49 of the Building Act 1984 (omitted by paragraph 5 of Schedule 4 of the Building Safety Act 2022) to apply where an AI did not become an RBCA before 6 April 2024 but can continue to oversee work that is not higher-risk building work by virtue of regulation 4 (see paragraph 14).
     
22. Regulation 14 is a saving provision that allows regulations made under the now-removed paragraphs 2 to 4B of Schedule 1 to the Building Act 1984 to continue in force as if made under other specified paragraphs of Schedule 1 of the same Act. The effect of this regulation is to ensure continuity and to maintain the legal effect of other existing regulations.

Any enquiries on this Circular Letter should be addressed to:

Building Regulations, 
2nd Floor, 
Welsh Government, 
Cathays Park, 
Cardiff, 
CF10 3NQ.

E mail: enquiries.brconstruction@gov.wales

Yours faithfully

Mark Tambini
Head of Building Regulations Policy