Building safety in Wales: new Welsh Government handbook describing its phased reforms published

Written by Iwan Jenkins, Partner in our Construction, Infrastructure and Projects Department.

The Welsh Government has recently published an update explaining its phased implementation of the Building Safety Act 2022. A new ‘Building Safety Act 2022 Handbook for Wales Design and Construction Phase’, (the ‘Handbook’) published in June, will be periodically updated to explain the Welsh Government’s progress in implementing one of the most important pieces of legislation enacted in relation to the built environment in Wales.

The Handbook currently details the first phase of the implementation of the Act, which covers changes to building control legislation and the regulations defining a ‘Higher Risk Building’ in Wales for the design and construction phase. It also provides links to all regulations made by the Welsh Government relating to building safety and links to the many forms and circulars it has published as part of its programme of reform. In this article, we highlight some of the key points discussed in the current version of the Handbook.

Separate bill to be introduced ‘in due course’ regarding the safety of occupied buildings

In England, part 4 of the Building Safety Act regulates in detail the management of safety risks in occupied higher risk buildings. This part of the Act does not apply to Wales. As we have written previously, the Welsh Government will be publishing its own response to the regulation of multi-occupied residential containing two or more storeys regardless of height, in the form of the Building Safety (Wales) Bill, after consultation with local authorities and the fire rescue authorities.

According to a separate announcement from the Welsh Government, published after the Handbook, talks between these various stakeholders have covered the duties to be placed on local authorities as regulators, cooperation with the fire rescue authorities, the new duty holder regime, the definition of ‘building safety risks’, registration and the building certificate, resident engagement, complaints, and their responsibilities when the new regime takes effect and enforcement. The Bill will therefore cover the duty holder and ‘golden thread’ obligations already in place in England and, the definition of buildings covered aside, it will be interesting to see how far policy diverges between the two administrations and in particular, the role of local authorities in monitoring compliance with the regime. The Handbook confirms this latest position.

Changes to the building control profession in Wales

The Handbook provides a helpful explanation of the recent changes to the regulation of the build control function in Wales with the redesignation of Approved Inspectors as Registered Building Control Approvers (RBCAs) and Building Inspectors as Registered Building Inspectors (RBIs). The Handbook highlights that from the 6th  April, anyone still operating as an Approved Inspector has not been permitted to undertake any new building control work but can still, for a transitional period (ending on 1st October 2024), continue to work on existing buildings that are not higher risk. During this period, AIs can apply to register as an RBCA to enable them to continue working on new or existing projects.

At the end of this transitional period, where an AI does not become a RBCA, outstanding work will automatically transfer to the relevant local authority’s building control team, to allow for an ‘orderly wind down’ of businesses choosing not to become RBCAs.  The other major policy change highlighted is that the new RBCA role will not be permitted to carry out building control activities in relation to higher risk buildings (see below). This role will now be restricted to local authorities. The Handbook notes that ‘as long as RBCAs maintain their registration with the BSR and have appropriate staffing levels to complete the work they agree to, RBCAs will continue to be able to work on all other building projects that are within the remit of their registration’.

The Handbook also clarifies that the ‘fundamentals’ of the role of building inspector changing to RBI have not changed. RBIs will ‘still need to, where necessary, check plans submitted for buildings and projects, undertake site inspections and work with contractors, designers and clients to assess for compliance’. What has changed is that RBIs will now be categorized according to four tiers, based on ‘demonstrable and assessable’ competencies for certain tasks. The Handbook sets out the four tiers (Class 1 Trainee Building Inspector, Class 2 Building Inspector, Class 3 Building Inspector and Class 4 Building Inspector (Technical Manager) and provides guidance on the range of activities permitted by each tier of registration.

Limits on work affecting higher risk buildings

The Handbook reminds us that from April 2024, only local authorities in Wales are permitted to oversee higher risk building work. To recap, a ‘higher risk building’ means a building that that is at least 18 metres in height or has at least seven storeys, and contains at least one residential unit, or is a hospital, a care home or a children’s home, and is not an ‘excluded building’ (these cover hotels, secure residential institutions, and living accommodation provided by the Ministry of Defence). The Handbook provides examples of situations that could be included in this definition, such as a ‘twenty-two story office block with a penthouse suite where an executive lives’. Exemptions cover the type of building where their staffed nature reduces the risk to occupants, such as hotels and managed accommodation; the Handbook suggests that this exemption will be kept under review if the trend towards lower staffed and unstaffed hotels increases the risks posed by these types of building.

Functions of the Building Safety Regulator in relation to Wales

The Handbook explains that the Building Safety Regulator (BSR) is now the regulatory authority for the building control profession in Wales, (RBCAs and RBIs), as it is in England, following the closure of the Construction Industry Council Approved Inspectors Register (CICAIR) in April 2024. This will avoid duplication of compliance work as many businesses in the profession work in both areas. There will now be a single point of contact and a single regulatory authority for all RBCAs and RBIs across England and Wales. The Handbook sets out the functions designated to the BSR by the Welsh Government, including the establishment and management of a register of all RBCAs and RBIs, investigating and prosecuting offences, publication of documents relating to building control, developing and monitoring operational standards and ‘in a limited capacity’ overseeing and responding to complaints about Approved Inspectors that would previously have been dealt with under CICAIR.

Guidance on the role and oversight of local authorities

Although RBCAs and RBIs working for local authorities will be regulated by the BSR, the regulation of local authorities’ building control functions will remain with the Welsh Government. The Handbook states that the Welsh Government has ‘plans to reform monitoring and enforcement of local authority building control from April 2025’. The Handbook lists the restricted functions that a local authority (or RBCA) may only perform through, or with the advice of, an RBI. As already noted, from 6th April 2024, only local authorities may take on new higher-risk building work. Whilst RBCAs will be able to continue with any outstanding higher-risk building work started under the old regime and commenced by 1st October 2024, the Handbook states that ‘if they discover that new higher-risk building work rules apply, or if an initial notice lapses or is cancelled, or they need to transfer building control functions to a different body, only local authorities can then continue with these projects’.

Changes to the prescribed forms needed for building control in Wales

Before the Welsh Government began implementing its building safety reforms, there were 12 prescribed forms used for building control work in Wales. Now, new forms have been introduced to meet the new requirements relating to building control in Wales, bringing the total number up to 20, each differentiated from the English equivalent by appending ‘(W)’ to the title. New forms replace the old forms 9 to 12 for public bodies which England have removed: PB1(W) (Public Body’s Notice), Form PB2(W) (Public Body’s Plans Certificate), Form PB3(W) (Public Body’s Notice and Plans Certificate) and Form PB4(W) (Public Body’s Final Certificate). The Handbook provides helpful guidance on the purpose and scope of each form. The Handbook also provides guidance on the new rules concerning transfers of projects between RBCAs.

The Handbook is a very useful document to guide the built environment profession in Wales in understanding the new requirements on changes to building safety and provides a comprehensive review and explanation of the first phase of these reforms. Being a ‘live’ document, it can be consulted on an ongoing basis as and when the situation develops. The Welsh Government is taking a different approach to England in that it is phasing in building safety reform, to help the industry to adapt as smoothly as possible to these major changes. We are looking forward to hearing of the subsequent phases and will report on these when published.