Episode 101 - Approved Inspector Role under the Building Safety Act

This week we will be talking about the role of the Approved Inspector under the new Building Safety Act. This episode content meets PC3 - Legal Framework & Processes of the Part 3 Criteria.

Resources from today's episode:

Websites:

https://www.gov.uk/government/consultations/changes-to-the-building-control-profession-and-the-building-control-process-for-approved-inspectors/consultation-for-changes-to-the-building-control-profession-and-the-building-control-process-for-approved-inspectors-in-future-to-be-known-as-registe#:~:text=The Building Safety Act 2022 provides for registered building control,registered building control approver regime.
https://www.legislation.gov.uk/ukpga/2022/30/part/3/crossheading/building-control-approvers-and-building-inspectors/enacted
https://press.hse.gov.uk/2023/07/17/building-safety-regulator-announces-first-step-towards-regulating-the-building-control-profession/

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Episode 101:

Hello and Welcome to the Part3 with me podcast.

The show that helps part 3 students jump-start into their careers as qualified architects and also provides refresher episodes for practicing architects. I am your host Maria Skoutari and this week is we will be talking about the role of the Approved Inspector under the new Building Safety Act. Today’s episode meets PC3 of the Part 3 Criteria.

So following a number of episodes I have currently shared regarding the changes to the Building Safety Act, today’s episode will be looking at what the new legislation means for the Approved Inspector role.

Through the Building Safety Act 2022, and associated secondary legislation, the proposed changes aim to improve the standards in building control by establishing a regulated building control profession overseen by the Building Safety Regulator that will require competence requirements for individual building control professionals.

So the Building Safety Act changes who can advise on and carry out building control work. The aim of these changes are to improve competence levels, transparency and accountability in the building control profession ensuring only individuals who have demonstrated the relevant competence are advising decision-makers before important building control decisions are taken.

The key changes under the act with regards to approved inspectors include:

That approved inspectors must register, as building control approvers, to continue to undertake building control work.
Individual inspectors must register with the Building Safety Regulator, and meet certain criteria, to be able to provide advice to local authorities and the Building Safety Regulator and registered building control approvers.
Registered building control approvers and building control authorities must obtain and consider the advice of a registered building inspector before carrying out certain building control functions.

So what can current Approved Inspectors do to meet the new requirements and have enough time to register as building control approvers:

Essentially, the role of the Approved Inspector will come to an end and if Approved Inspectors wish to continue with building control matters they will have to register as building control approvers and they must do so within six months before the new regime formally begins.

The Building Safety Regulator governed by the HSE has determined two independent provider schemes for building control professionals, the Building Safety Competence Foundation and the Chartered Association of Building Engineers. These two schemes can be used by building control professionals to become registered building inspectors.

To enable a smooth transition to the new regime, the government is proposing a number of transitional proposals covering instances:

Where an approved inspector registers as a building control approver with the Building Safety Regulator
Where an approved inspector overseeing non-higher-risk building work does not become a registered building control approver
‘In-flight’ higher-risk building work

So looking at the second transitional proposal of an Approved Inspector not overseeing high-risk buildings and therefore not becoming a registered building control approver, what is the process in such instances:

Under such circumstances, the new regime allows for a six-month transitionary period from the start of the registered building control approver regime for an approved inspector to conclude their remaining non-higher-risk building work cases and they will not be able to take on any new work during this time.

So during the 6-month period, an approved inspector will retain their existing powers to issue plans certificates and final certificates and to cancel any existing initial notices where work will need to transfer to a registered building control approver or revert them to the local authority. Then at the end of the 6-month period, even if approved inspectors don’t work on higher-risk buildings they still will not be able to exercise their powers and their deeming provision will cease to be in force, unless they register as a building control approver.

And even when the Approved Inspector does seek to work on higher-risk buildings, once the higher-risk building work regime comes into force, an approved inspector will not be able to submit an initial notice which relates to higher-risk building work unless they register by day one of the new regime as a building control approver.

Now under the third transitional proposal, In-flight higher-risk building work:

The transitional arrangements in such circumstances, initially is that for higher-risk building work subject to an initial notice to benefit from the transitional provisions, the initial notice must have been accepted or be deemed to be accepted by the local authority by the date when the new regime for higher-risk building work comes into force. This means that the five days, under current regulations, in which the local authority has to accept or reject an initial notice before the notice is deemed to be accepted, must have taken place before the regime for higher-risk building work coming into force. This is to make sure that building work that a local authority wishes to reject cannot continue to be built to previous building regulations.

Then at the end of the transitional period where higher-risk building work subject to an initial notice is uncommenced, the initial notice will cease to be in force. As a result, any uncommenced higher-risk building work subject to an initial notice will not be able to begin construction without submitting a building control approval application to the Building Safety Regulator under the new higher-risk building control regime. Without this intervention, uncommenced higher-risk building work would be overseen by an approved inspector, with the Building Safety Regulator taking over the role the local authority has under the current system, but this is not the intended policy outcome. The government has made clear that new higher-risk building work, when the new regime for higher-risk building work comes into force, must be solely overseen by the Building Safety Regulator.

The government also proposes to make provision in building regulations that plans certificates also cease to be in force where the initial notice to which they relate ceases to be in force. This approach will make sure that enforcement action can be taken against work completed where the work is not covered by a final certificate. This is to enable the Building Safety Regulator to properly oversee higher-risk building work subject to an initial notice that fails to commence within the transitional period and must meet the requirements of the new building control regime for higher-risk buildings.

Where an initial notice is cancelled, for any reason, during or at the end of the transitional provisions for higher-risk building work, this work will transfer to the Building Safety Regulator as building control authority for higher-risk building work.

In the case where building work commenced by the end of the transitional period, and the approved inspector has successfully registered as a building control approver and therefore meets the other criteria for the deeming provisions, they will be able to continue oversight of the higher-risk building work to completion. This will mean that the initial notices issued by the approved inspector for the higher-risk building work will be treated as initial notices for the registered building control approver. Should an initial notice be subsequently cancelled, the incomplete higher-risk building work will revert to the Building Safety Regulator.

So what I discussed up to this point was the transitional arrangements for Approved Inspectors getting to grips with the new regime.

Now lets look at the Registration process with the Building Safety Regulator:

So, as briefly covered earlier, one of the roles of the Building Safety Regulator will be to oversee building control registration for individual building inspectors and private sector building control approvers by setting the criteria and competence requirements they will need for the registration and the codes to which they will need to adhere to.

Local Authorities as a whole will not be required to register with the Building Safety Regulator, but the individual employees will be able to register with the Building Safety Regulator as building inspectors if they meet the registration requirements. But Local authorities will be subject to the new rigorous requirements in having to comply with the Building Safety Regulator’s Operational Standards Rules for building control bodies, and seek the advice of a registered building inspector before carrying out certain building control activities.

Key item to note, registered building control approvers can work across England and may be overseeing building work in the areas of multiple local authorities.

In terms of how long the certification is valid for, currently this is set at 4 years and then building control approvers will need to re-register of the 4 years if they wish to continue with their duties. As part of the Building Safety Regulators approved independent competence assessment schemes, candidates will be evaluated against the Building Inspector Competence Framework (BICoF) classes 1 – 4. The different classes are for different requirements, so:

A Class 1 Building Inspector is for (Associate/Assistant): Cannot be unsupervised. Minimal experience/entry level position.

A Class 2 Building Inspector (Standard): Can undertake tasks like evaluating plans, drawings and documents, conducting inspections, advising building control bodies, and advising the issuance of completion certificates.

Then a Class 3 Building Inspector (Complex/High Rise Buildings): Has additional knowledge to deal with complex and high-rise buildings. Must be able to liaise with clients/contractors/building control bodies and must be able to implement and develop a property inspection schedule.

And a Class 4 Building Inspector (Manager): Is able to manage a building control team.

In order to progress through the classes, and to maintain class position, Inspectors must complete mandatory CPD.

So under the new system, the Building Safety Regulator will establish and maintain two registers, the first will be for building inspectors for both the public and private sector who must meet the same minimum standards to be placed on the Building Safety Regulators register and the second will be a register for private sector building control bodies, which are the current Approved Inspectors, who will need to register as building control approvers and meet registration requirements and other criteria as previously mentioned.

So reverting back to the code, building control approvers will need to adhere to, these codes will essentially set out the expected behaviours and standards that registered building control approvers must meet, the HSE published the proposed professional conduct rules in January. If a registered building control approver doesn’t meet these standards, and therefore contravenes the professional conduct rules, the Building Safety Regulator, as set out in the Building Safety Act 2022 will be able to investigate the contravention and issue sanctions, which include:

A financial penalty, i.e. a fine
A variation to the registered building control approver’s registration
Suspension of registration for a specific amount of time
Cancellation of registration

The Building Safety Regulator can also order a short suspension of the building control approver’s registration of up to three months while investigating the breach if the contravention of the professional conduct rules is considered very serious.

Some common reasons for claims against Building Control Approvers will probably include:

that they breached their contract by negligently issuing the final certificate when the works did not comply with the Building Regulations;
that the works are defective and they failed to inspect the works adequately; and
that they offered the homeowner an enhanced duty of care by commenting and advising on the quality of the works, and that they breached this duty.

In which case, Approvers should ensure that they have robust terms and conditions upon instruction. For the time being, many Approved Inspectors are likely to be continuing to use the ACAI standard contract and this is a requirement of many Approved Inspector professional indemnity insurance policies. The CICAIR terms contain many key protections to reflect the risks of the role which will also be important in Approver appointments.

Now lets look at what the key duties of the different bodies are, including a Building Control Approver, the Local Authority and Building Safety Regulator:

Starting with a Building Control Approver, their duties and responsibilities will consist of:

Submitting initial notices
Issuing plans certificates or a combined certificate with initial notice
Giving a cancellation notice in cases of a contravention of building regulations
Giving a cancellation notice when work becomes higher-risk building work
Determining whether to issue a final certificate
Submitting an amendment notice where there is a variation of work
Submitting a new initial notice where the original initial notice ceases to be in force, but no final certificate has been issued.
Giving a transfer certificate and report for a new initial notice where there is a change of registered building control approver.

Whereas, Local Authorities duties and responsibilities will consist of:

Determining a building control approval application
Determining whether to accept or reject a transfer certificate and report
Determining whether to issue a completion or partial completion certificate
Issuing a direction to Relax or Dispense with a requirement of the building regulations
Decisions on matters relating to the use of short-lived materials
Decisions on matters dealing with the drainage of buildings
Decisions on matters dealing with the provision of water supply
Tests for conformity with building regulations
Deciding if there is a contravention of building regs
Giving compliance (S35B) & stop (S35C) notices
Giving or withdrawing a section 36 notice or the decision on execution of section 36 notices (removal or alteration of offending work)
Provision of facilities for refuse
Determining an application for a certificate for unauthorised building work (regularisation certificate)
Deciding, with partly completed work (under regulation 19 of Building (Approved Inspectors etc) Regulations 2010), whether the plans are sufficient to show the work will not contravene building regulations or when the work needs to be cut into, when work reverts to a local authority.

And then the Building Safety Regulators duties and responsibilities for higher-rik building work will consist of:

Approving a building control application for a higher-risk building
Determining whether to issue a completion certificate or partial completion certificate
Issuing a direction to Relax or Dispense with a requirement in building regulations
Decisions on matters relating to the use of short-lived materials
Decisions on matters dealing with the drainage of buildings
Decisions on matters dealing with the provision of water supply
Tests for conformity with building regulations
Deciding if there is a contravention of building regs
Giving compliance (S35B) & stop (S35C) notices
Giving or withdrawing a section 36 notice, or the decision on execution of section 36 notices (removal or alteration of offending work)
Giving approval, in the cases where it is required when building control approval was given, so that work can progress past a stage or point.
Determining the outcome of a regularisation certificate application for a higher-risk building
Provision of facilities for refuse
Determining a higher-risk building HRB change control application

And for non higher-risk building work under a Regulator’s Notice, their duties consist of:

Determining a building control approval application
Issuing a completion or partial completion certificate when a Regulator’s Notice has been given to the Local Authority
Issuing a direction to Relax or Dispense with a requirement
Decisions on matters relating to the use of short-lived materials
Decisions on matters dealing with the drainage of buildings
Decisions on matters dealing with the provision of water supply
Tests for conformity with building regulations
Deciding if there is a contravention of building regs
Giving compliance (S45B) & stop (S35C) notices
Giving or withdrawing a section 36 notice or the decision on execution of section 36 notices (removal or alteration of offending work)
Provision of facilities for refuse
Determining an application for a certificate for unauthorised building work (regularisation certificate)

A Key item to highlight is that duty holders or people carrying work on higher-risk buildings will no longer be able to choose their building control body, under the new regime, the Building Safety Regulator will be the only building control authority for higher-risk buildings. It will therefore not be allowed from the start of the higher-risk building regime for an approved inspector or registered building control approver to submit an initial notice (the initial approval mechanism required in law when employing a registered building control approver to carry out the building control) or amendment notice (the mechanism to vary an initial notice) or for a developer to deposit full plans with a local authority.

So under the new regime, initial notices or amendment notices, where an Approved Inspector notifies the local authority of intended building work, will no longer be lawful to cover higher-risk building work, any such notice will be void and cannot be relied upon.

So the proposed intent with Initial Notices will include:

Amending the existing initial notice form in Schedule 1 of the Building (Approved Inspectors etc.) Regulations 2010 to include a statement that building work does not contain any higher-risk building(s).
Creating a new ‘for information’ form in Schedule 1 of the Building (Approved Inspectors etc.) Regulations 2010 for local authorities to deal with situations where initial notices are submitted that contain one or more higher-risk building(s).
Creating three new forms, one each for registered building control approvers, individuals, and local authorities to cancel initial notices when building work includes one or more higher-risk building(s). These forms would each include full cancellation and part cancellation options, the latter is to deal with cases of mixed sites with higher-risk buildings and non-higher-risk buildings where the initial notice only needs to be cancelled in part, not in full.
Public bodies with a building control procedural exemption under s5 or s54 of the Building Act 1984 will not be able to carry out their own building control on higher-risk buildings in the future. The public body notices (equivalent to initial notices) will be updated to include a statement that building work does not contain any higher-risk building(s). Public bodies and local authorities will be required to cancel public body notices when building work is or becomes higher-risk building work.

Another document which will be affected by the new regime is the Plans Certificate:

So, Plans certificates currently allow approved inspectors (and in future, registered building control approvers) to certify that detailed plans for building work are in accordance with all applicable building regulations’ requirements. Where a plans certificate is submitted, and not rejected by the local authority, they also provide protection for the developer from enforcement after the work is completed, provided the work is carried out in accordance with the plans certificate. So Approved inspectors are responsible for checking that building work described in the plans will comply with all applicable building regulations’ requirements and the local authority can either accept or reject the plans certificate but only on the grounds currently provided in the Building (Approved Inspectors etc.) Regulations 2010.

Now under, The Building Safety Act 2022, it introduces powers for government to make changes to the building regulations to:

Require a plans certificate to be given in prescribed cases;
Deal with the consequences of failing to comply with such a requirement; and
Allow for the ability to submit a plans certificate subject to further plans being inspected by the registered building control approver at a later date.

Plans certificates are currently mandatory only when an approved inspector is asked to provide one by their client, but under the Act it is intended that plan certificates will become mandatory for any building work under the building regulations on non higher risk buildings that fall under the Regulatory Reform (fire safety) Order 2005. This essentially means that in cases of building work falling under the Order, the registered building control approver will have to consider some or all of the plans together and certify to the local authority that the building work will comply with all applicable building regulations’ requirements if built in accordance with those plans. If a register building control approver, however, is not satisfied with the information received to enable them to issue a plans certificate, they will be able to issue a certificate with a statement confirming that they inspected the sufficient plans enabling them to issue the plan certificate and that the client has agreed to provide all further plans by a specific time for the approver to inspect before the work starts. Where conditions have not been met, the registered building control approver would be expected to cancel the initial notice, and the work to revert to local authority building control for regularisation or enforcement where necessary. Local authorities will also be able to cancel the initial notice.

So reverting back to initial notices:

The Building Safety Act 2022 introduces a new process for the responsibility of building projects to be transferred from one registered building control approver to another, instead of automatically reverting to the local authority. This means that a new registered building control approver will be able to take on unfinished work not subject to a final certificate, and ensure that it complies with all applicable building regulations’ requirements. This will provide greater flexibility and capacity for the building control system. It will also mean that every incoming registered building control approver has taken all reasonable steps to determine whether any unfinished work contravenes any provision of the building regulations and to confirm this with the relevant local authority to which the certificate and report must be submitted.

To sum up what I discussed today:

The Act and the Regulations have brought in three important changes: the requirement to register with the BSR, the minimum performance standards that Approvers must meet, and the new powers for the BSR to investigate and sanction Approvers.
A key change under the new regime, is that approved inspectors must register, as building control approvers, to continue to undertake building control work.
During the 6-month transitional period, an approved inspector will retain their existing powers to issue plans certificates and final certificates. Then at the end of the 6-month period, even if approved inspectors don’t work on higher-risk buildings they won’t be able to exercise their powers unless they register as a building control approver.
Building control registration for individual building inspectors and private sector building control approvers will be overseen by the Building Safety Regulator by setting the criteria and competence requirements they will need for the registration and the codes to which they will need to adhere to.
If a registered building control approver doesn’t meet these standards, contravening the professional conduct rules, the Building Safety Regulator, as set out in the Building Safety Act 2022 will be able to investigate the contravention and issue sanctions.
As part of the Building Safety Regulators approved independent competence assessment schemes, candidates will be evaluated against the Building Inspector Competence Framework (BICoF) classes 1 – 4 and will be valid for 4 years when they will need to re-register
Also under the new regime, plans certificates will become mandatory for any building work under the building regulations on non-higher risk buildings that fall under the Regulatory Reform (fire safety) Order 2005 to sign off that the works are in accordance with the Building Regulations
For higher-risk buildings, the initial notice will automatically cease and a fresh application will need to be made for building control approval, this time to the Building Safety Regulator
The position for non-higher risk buildings is a bit different; the initial notice will remain valid until 1 October 2024, but if a final certificate for any of the building work described in the initial notice has not been given by then, the initial notice will automatically cease. It seems that it will then be necessary to appoint a registered building control approver to obtain a fresh initial notice. This will also almost inevitably delay the building works

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Episode 101 - Approved Inspector Role under the Building Safety Act

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