As the government takes control of the Building Safety Regulator in the wake of mounting criticism of delay and inefficiency, we review the proposed reforms in the context of construction projects.

The BSR and its aims

The Building Safety Act 2022 (BSA) established the Building Safety Regulator (BSR) to oversee the safety and standards of buildings, especially in relation to higher-risk buildings (HRBs).

The BSA defines HRBs as buildings being at least 18 meters in height or having at least seven storeys; and which are either a hospital or a care home or have at least two residential units. These building are identified by the government as posing specific safety risks due to the nature of their use and construction. 

On 1 October 2023, the BSR became the Building Control Authority for all HRBs in England and is currently part of the Health and Safety Executive (HSE). 

The BSR is responsible for setting and regulating standards for the design and construction of buildings. The BSR seeks to achieve its objectives by implementing a new regulatory regime for HRBs in England and overseeing and enforcing the new regime for occupation of high-rise buildings.  

The BSR also oversees the safety and performance of all buildings, performance of other building control bodies such as local authorities and advises on existing and emerging building standards and safety risks. The BSR’s role is to promote competency among industry professionals and regulators to raise overall standards in the design, construction and management of buildings. 

Bumps in the road

While the BSR’s objectives are commendable, achieving these objectives has not been as smooth as it might have hoped.

Since the BSR’s establishment in 2022, it has faced criticism from the construction industry for inefficiencies and delays in processing applications and approvals, which has led to delays to the construction of HRBs and other projects. By way of example, Gateway Two approvals, considered the checkpoint before any construction work on HRBs can begin, were intended to take around 12 weeks for new builds. However, approvals are currently taking double that time, sometimes up to 40-48 weeks. Another industry concern is that the BSR is stopping HRBs from being built rather than making them safe. This is leading to what are widely considered unnecessary delays to the government’s proposals to increase the number of residential units within England and Wales.  

In the construction industry, delays come with increased costs, time extensions, budget overruns, and design re-work. Such delays and uncertainty can strain the developer/employer relationship with contractors, consultants and investors. This has a knock-on effect on funding for projects, as investors and funders want to realise their return on investment sooner and any uncertainty can cause a lack of confidence in the market. 

Is there a cure?

With the aim of tackling the mounting criticisms of the BSR, the Ministry of Housing Communities and Local Government (MHCLG) has announced reforms to the BSR including removing it from the control of the HSE and bringing it into the control of a new arm’s length agency of the MHCLG. This proposal flows from the government’s ‘Plan for Change’ initiative to deliver on 1.5 million high rise homes over a five-year period – a plan that has had its own significant blocks and delays. 

The MHCLG says the BSR reforms are set to:

• Introduce a new fast track process to accelerate the review of newbuild applications and unblock delays. MHCLG aims to achieve this by integrating the building inspector and engineer capacity directly into the BSR to enhance the processing and review of existing newbuild cases and remediation decisions.
• Speed up remediation of all buildings with unsafe cladding which require remediation, in line with the government’s Remediation Acceleration Plan. 
• Bring about leadership changes (with the appointment of a non-executive chair of a new MHCLG shadow board and a new BSR CEO) and further investment in the BSR with the recruitment of over 100 new staff to enhance the BSR’s operational capacity. 
• Take early steps towards establishing a single construction regulator, which is a key recommendation from the Grenfell Tower Inquiry. 

Looking ahead

The reforms to enhance the efficiency and effectiveness of the BSR are welcome changes as:

• High rejection rates of Gateway Two applications and lack of clarity around narrative-led submissions have caused difficulties with progressing projects. The proposed reforms are likely to create a stronger sense of accountability, collaboration and investment opportunities for the construction sector. 
• The new fast track process for newbuild applications (especially for HRBs) could increase the speed of planning and gateway approvals. This should lower costs and improve project timelines. 
• The MHCLG’s aim to speed up remediation for HRBs could set the stage for plans to remediate non-HRBs as well, creating alignment with the government’s Remediation Acceleration Plan. Whilst the Remediation Acceleration Plan (for remediating all buildings over 11m with unsafe cladding by 2029) has been welcomed for its ambition, it comes with uncertainty regarding how it will be enforced in practice. 
• A single construction regulator would consolidate safety functions which would address the long-standing fragmented regulatory landscape of the construction industry. The Grenfell Tower Inquiry exposed a complex and fragmentated regulatory system in the construction industry, which had lost the trust and confidence of the sector and did not prioritise accountability. 

Whilst the proposed BSR reforms are welcome, there remains concern around how the fast-track process will operate in practice, and when the new processes will be implemented. The industry will require much more detail to feel reassured that these changes will reduce the delays, and lead to the increased efficiency and effectiveness in the construction of the new homes. 

However, the proposed reforms are a positive move towards a much needed single construction regulatory system which sets clear standards and requirements that parties can understand, and that operates efficiently to avoid needlessly increasing the time and cost of completing projects.

Sam Srikanth, an Associate in London, co-authored on this post.