Lawyers from Womble Bond Dickinson’s construction and engineering team explain the new regulations covering higher-risk buildings change control.
The process of making variations to higher-risk building (HRB) projects in England during the construction phase is more strictly controlled since the new change control regime came into force on 1 October 2023 through the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (Regulations).
Explanations are now required for the changes recorded and a trail of information tracking the HRB’s evolution. By listing the names of those consulted (and summarising their advice) and identifying the person updating the change control log, there is greater accountability around these changes.
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What changes are controlled?
The Regulations identify “controlled changes”, which will be subject to the new rules, as changes to any:
- “current plans” of work or proposed work, or carrying out work otherwise than in accordance with “current plans”;
- stage of HRB work, including adding or removing a stage; or
- strategies, policies or procedures described in any “current agreed document”.
Essentially, “current plans” and “current agreed documents” are the documents approved by the Building Safety Regulator (BSR) as part of the Gateway 2 approval, as revised in line with the Regulations.
Actions if you have a controlled change
If your proposed change is a controlled change, you must determine which of the three kinds of controlled change it is, and the action to be taken in relation to it:
- notifiable changes include, for example, changes to the layout of a flat or a residential room in a (proposed) HRB; to the number or dimensions of any openings in any wall, ceiling or other building element for any pipe, duct or cable; or to the wall tie, wall restraint fixing or support system in any (proposed) wall, excluding an external wall. Before a notifiable change can be made, a notification must be sent to the BSR. If the BSR requests more information, this should be provided within 10 working days of receiving their request.
- major changes include, for example, changes that increase or decrease the external height or width of a (proposed) HRB; a change to the structural design or structural loading of the building; or a change to the external wall of a (proposed) HRB, including a wall tie, wall restraint fixing or support system in the wall. Before a major change can be made, a change control application must be submitted to and approved by the BSR. The BSR has six weeks to determine the application (or longer if agreed).
- recordable changes are controlled changes that are not notifiable or major changes.
Irrespective of its type, each controlled change must be recorded in the “change control log” and any agreed documents affected must be revised before the change is implemented. The Regulations set out the information to be entered into this log, such as the name of the individual recording the change.
The Regulations also set out what happens if a mix of these changes are proposed simultaneously.
The BSR can also specify that any type of controlled change is a notifiable change or a major change, in which case you must follow the relevant process for that change.
Information for the BSR
The Regulations also set out in detail what information the BSR needs which, for both notifiable and major changes, includes at least:
- a description of the proposed change;
- why the change has been proposed;
- the name and occupation of each person (if any) whose advice was sought and a summary of any advice provided;
- a “compliance explanation”;
- additional information for major changes.
The future of variations
The BSR will now be able to scrutinise the changes to variations during the construction phase and reasons for them, as the change control log will be provided to the BSR at the completion certificate application stage at Gateway 3.
How the works are described at Gateway 2, when applying for Building Control approval, may need careful consideration – being too prescriptive may lead to numerous controlled changes, but providing insufficient information may mean the BSR does not give its approval.
Careful thought must also be given to the programme and budget for the HRB works, with sufficient float in both for any notifications or applications to the BSR, as well as any requests for further information and potential delays in approval.
There are detailed transitional provisions in the Regulations which apply to HRBs within the transitional criteria – but for those outside these transitional arrangements, or which subsequently fall outside them, the new regime needs to be complied with going forward.
Simon Lewis is partner, Michelle Essen is legal director and Sarah Wales-Canning is managing associate at Womble Bond Dickinson.
