Local authorities and the Building Safety Regulator

Simon Lewis and Michelle Essen look at the impact of the Building Safety Act 2022 on councils.

Local authorities have increasingly been affected by the Building Safety Act 2022 (BSA) since April 2022, when the BSA came into force. 

While the industry has examined and discussed at length how the BSA will impact contractors and developers, local authorities themselves are in a unique position. They are impacted by the BSA from the perspective of the projects that they want to get underway themselves, from the viewpoint of their role in the building control process, and also in terms of their relationship with the Building Safety Regulator (BSR).

Building safety changes are coming thick and fast now, with the government's anticipated 18-month period for introducing the further Regulations and guidance needed to support the BSA nearly at an end (as at October 2023).  In the run up to that, a few weeks ago the government published five sets of new draft regulations and 3 consultation responses on building safety, with 2 more sets of draft regulations currently anticipated at some point in September. All in all, there is a lot on Parliament's statute books for September. 

For local authorities, the impacts of the BSA are cumulative and significant. 

Local authorities, the Regulator, and higher risk buildings

One of the most significant impacts is local authorities' relationship and interaction with the BSR in the context of the strengthening of the building control regime. 

From 1 October 2023, the BSR will become the new building control authority for Higher Risk Buildings (HRBs), instead of local authorities.

However, local authorities will still be involved as referred to in sections 13 to 16 of the BSA. These provisions, broadly speaking, relate to assisting the BSR.

Multi-disciplinary teams

When the BSR acts as the building control authority for HRBs, the BSR can use the BSA provisions mentioned above to put in place a "multi-disciplinary team". This team can include a fire safety expert from the relevant fire and rescue service, and a building control specialist from the relevant local authority.  (The BSR is also able to secure expertise from the private sector where appropriate to support this work under its general powers - in particular under new section 11A of the Health and Safety at Work etc Act 1974).

In particular:

• Section 13 (1) of the BSA states that the local authority can be requested by the BSR to "do anything for the purpose of…facilitating the exercise by the [BSR] of a relevant function, or… enabling the relevant authority to facilitate the exercise by the [BSR] of a relevant function"
• Section 15 (2) provides further details, confirming that any of the local authority's staff involved in providing relevant assistance to the BSR must have the "appropriate skills, knowledge, experience and behaviours."

We anticipate further guidance on the formation and conduct of these multi-disciplinary teams as part of the avalanche of new regulations and guidance this September. 

BSR's directions and local authorities' cooperation

If the local authority is reluctant to assist in the terms set out above, the BSR can "direct" the local authority to do so. However, this would probably be in exceptional circumstances only, as under the BSA this kind of direction may be given only with the consent of the Secretary of State.

The BSA also includes details on steps that must be taken before a direction is given, and about the direction itself – for example, that it has to be in writing.

That said, it's worth remembering that local authorities and fire and rescue authorities will also be under a separate duty to cooperate with the BSR (and it with them) under Schedule 3 of the BSA in respect of the BSR's building functions for HRBs. Particular to local authorities, this Schedule says: "The [BSR] and a local authority must cooperate with each other in the exercise of their relevant functions."  

As such, it is fully expected that both parties will work together to facilitate the aims of the legislation.   

What this means for local authorities

All of this spells more work for local authorities as well as a very different and considerably more regulated building control approval process. 

Local authorities will be busy over the next few months trying not only to bed down the new building safety regime, but also to quickly forge the necessary working relationships with the BSR and other members of the multi-disciplinary teams, while at the same time demonstrating that they have the "appropriate skills, knowledge, experience and behaviours".

It will be a steep learning curve for everyone in both the public and private sectors as we explore this new building safety landscape together over the next few months.

Simon Lewis is a Partner and Michelle Essen is a Legal Director (Practice Development Lawyer) at Womble Bond Dickinson.