Building Safety Act 2022
Building Safety Act 2022 c.30, supported by Building (Higher-Risk Buildings Procedures) Regulations 2023 SI 2023/909
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Why This Matters for Part 3
The Building Safety Act 2022 is the most heavily examined new statute in current Part 3 papers. Examiners test the definition of a higher-risk building, the three Gateway process, the statutory Principal Designer role under s.31, the Accountable Person regime that runs into occupation, the change to limitation periods under s.135, and the new criminal liability framework. Candidates must know section numbers, Gateway timings, and the practical division of responsibility between the BSA PD, the CDM PD, and the Building Safety Regulator.
The Building Safety Act 2022 received Royal Assent on 28 April 2022 and is the most significant reform of building safety law since the Building Act 1984. It was the legislative response to the Grenfell Tower fire and the recommendations of the Hackitt Review. The Act establishes the Building Safety Regulator (within the HSE) as the regulator for higher-risk buildings, creates a three-Gateway approval process, imposes new statutory duties on designers and contractors throughout the design, construction, and occupation lifecycle, and substantially extends the limitation periods for building safety claims under the Defective Premises Act 1972. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (SI 2023/909) operationalise the Gateway 2 and 3 procedures.
Higher-Risk Building Definition
Statutory Definition for Design and Construction
BSA 2022 s.65 and Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023
A higher-risk building (HRB) during design and construction is one that is at least 18 metres in height or has at least 7 storeys, and contains at least 2 residential units. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) also bring hospitals and care homes within scope during design and construction (although not, currently, during occupation). Measurement of height is taken from the lowest ground level to the top of the floor of the topmost residential storey.
Either limb (18 metres OR 7 storeys) triggers HRB status. A 6-storey building at 18 metres is an HRB. A 7-storey building at 17 metres is also an HRB. Examiners test marginal cases. Know the measurement convention.
Occupation Phase Scope
BSA 2022 s.65 and s.72
For the in-occupation regime, the HRB definition is narrower than during construction. Hospitals and care homes are excluded once occupied. Only residential buildings meeting the height or storey threshold remain HRBs in occupation, and the Accountable Person duties under s.72 apply only to these. The transition from construction HRB to occupation HRB is mediated through Gateway 3.
Mixed Use and Specific Exclusions
BSA 2022 s.65(2) and Schedule
A building can be an HRB even if only part of it is residential, provided at least two residential units are present and the height or storey threshold is met. Hotels, military barracks, prisons, secure accommodation, and certain temporary structures are excluded from the HRB regime. The architect should test the building's classification against the Regulations early, ideally at feasibility stage, because the design and procurement implications are significant.
Gateway Process
Gateway 1: Planning
Town and Country Planning (Development Management Procedure) (England) Order 2015 as amended; National Planning Policy Framework
Gateway 1 applies at the planning application stage for HRBs. The applicant must submit a fire statement with the planning application, addressing fire safety considerations including site access for the fire service, water supplies, and the broader fire strategy. The Health and Safety Executive (acting through the Building Safety Regulator) is a statutory consultee. Gateway 1 came into force on 1 August 2021, before most other BSA provisions.
Gateway 2: Pre-Construction
BSA 2022 s.30 amending the Building Act 1984; Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 Reg 13
Before construction can begin on an HRB, the client must obtain Gateway 2 approval from the Building Safety Regulator. The application must contain a full information package including drawings, specifications, the construction control plan, the change control plan, the competence declaration, and the fire and emergency file. The BSR has 8 weeks to determine the application, extendable to 12 weeks with the applicant's agreement. Construction cannot lawfully start until approval is given.
Know the 8 plus 12 week rule. Gateway 2 is a hard stop, not advisory. Starting work without Gateway 2 approval is a criminal offence under the Building Regulations as amended by BSA 2022. Examiners will test programme implications of the 8 to 12 week determination period.
Gateway 3: Completion and Occupation
Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 Part 4
Before an HRB can be occupied, the client must apply to the Building Safety Regulator for a completion certificate at Gateway 3. The application includes the as-built information, the final fire and emergency file, the golden thread information set, and confirmation that the building has been constructed in accordance with the approved Gateway 2 application or any approved change control. The building cannot be occupied without a Gateway 3 certificate.
Change Control
Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 Reg 21 to Reg 25
Changes to the design or construction after Gateway 2 approval must be managed through a change control plan. Major changes require a fresh application to the BSR. Notifiable changes must be recorded and shared. Recordable changes are logged on the golden thread. The Principal Designer and Principal Contractor are responsible for ensuring changes are categorised correctly and processed through the right route.
Principal Designer Role under BSA
Appointment and Scope
BSA 2022 s.31; Building Regulations 2010 Reg 11A as inserted by SI 2023/911
The BSA Principal Designer is appointed by the client in writing, and is responsible for planning, managing, and monitoring compliance with the Building Regulations during the design phase. The role applies to all building work in England, not only HRBs, although the statutory consequences are most acute for HRBs. The BSA PD is distinct from the CDM PD. The two roles can be held by the same person where competent for each.
Section 31 BSA 2022 is shorthand. The mechanics of the BSA PD role sit in the Building Regulations 2010 as amended by SI 2023/911. Cite both in an exam answer to show you understand the legislative structure.
Statutory Declaration at Gateway 2
Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 Reg 4 and Reg 13
At Gateway 2 submission, the Principal Designer must sign a statutory declaration confirming that, to the best of their knowledge, the design complies with the applicable Building Regulations. This is a personal statement of compliance. Knowingly providing a false declaration is a criminal offence with potential imprisonment. The PD should retain evidence of how compliance was verified before signing.
The Gateway 2 declaration is the riskiest single document the architect-as-PD signs in their career. Examiners will probe what evidence base the PD relies on. The answer must include third-party fire engineer sign-off, structural engineer sign-off, and a clear audit trail. Never sign on optimism.
Through Gateway 3 and Golden Thread
BSA 2022 s.31; Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 Part 5
The Principal Designer's role continues through to Gateway 3, including ensuring the golden thread of information is maintained, that change control is properly executed, and that the as-built information accurately reflects the constructed building. The golden thread is a structured, accessible information set covering the design and construction record. The PD hands the golden thread to the Accountable Person at occupation.
Accountable Person and the In-Occupation Regime
Accountable Person
BSA 2022 s.72 to s.74
An Accountable Person (AP) is the duty holder for an occupied HRB. Usually this is the building owner or the entity holding the freehold or a relevant long lease. Where more than one AP exists, the Principal Accountable Person (PAP) is identified under s.73. The AP must register the HRB with the Building Safety Regulator, manage building safety risks, and engage with residents on safety matters. Failure to register is a criminal offence under s.77.
Safety Case Report
BSA 2022 s.85 and s.86
Each AP must produce a Safety Case Report for the building. The Safety Case identifies building safety risks (specifically the spread of fire and structural failure), assesses how those risks are being managed, and demonstrates that the risk management is reasonable and proportionate. The Safety Case must be kept under review and updated as conditions change. The BSR can call for the Safety Case at any time and can issue improvement notices.
Building safety risks under the in-occupation regime are tightly defined: spread of fire and structural failure. Asbestos, gas, and electrical safety remain under their own regimes. Examiners test whether candidates wrongly broaden the Safety Case scope.
Resident Engagement Strategy
BSA 2022 s.91 and s.92
The Accountable Person must prepare and operate a resident engagement strategy, setting out how residents will be consulted on building safety decisions, how complaints will be handled, and how information about building safety will be communicated. Residents have a right to request information under s.92. The strategy must be reviewed and revised as needed.
Occurrence Reporting
BSA 2022 s.87 and Higher-Risk Buildings (Management of Safety Risks etc.) (England) Regulations 2023
The Principal Accountable Person must report safety occurrences to the Building Safety Regulator. A safety occurrence is an event involving structural failure or the spread of fire that, in the AP's opinion, could be a significant risk to people in or around the building. Reporting is via a prescribed form and timeframe. The regime sits alongside, not in place of, RIDDOR reporting.
Defects and Limitation Changes
Amendment of the Defective Premises Act 1972
BSA 2022 s.135 amending Defective Premises Act 1972 s.1 and inserting s.4A
Section 135 of the BSA 2022 amended the Defective Premises Act 1972 in two major ways. First, the limitation period for actions under s.1 DPA 1972 is extended from 6 to 15 years for new claims accruing after 28 June 2022. Second, the limitation period is extended retrospectively to 30 years for claims that accrued before 28 June 2022. This was, at the time, the most far-reaching retrospective extension of liability in English building law.
Be precise on the dates. New claims (defects appearing after 28 June 2022) carry 15-year limitation. Pre-existing claims that were time-barred under the old 6-year rule carry the new 30-year retrospective period. Examiners test the distinction between accrual date and the new periods.
Building Liability Orders
BSA 2022 s.130 to s.132
Sections 130 to 132 introduced Building Liability Orders, which allow the High Court to extend liability for building safety defects to associated bodies corporate. The aim is to defeat corporate structures designed to shield ultimate parents from liability for unsafe building work carried out by special purpose subsidiaries. The court must be satisfied it is just and equitable to make the order.
Remediation Orders and Contribution Orders
BSA 2022 s.123 to s.125
The First-tier Tribunal can make Remediation Orders requiring landlords to remedy relevant defects in qualifying relevant buildings, and Remediation Contribution Orders requiring associated persons to contribute to the cost of remediation. The scheme is part of the wider leaseholder protections in Schedule 8 of the Act.
Competence and Criminal Liability
Statutory Competence Framework
BSA 2022 s.10; Building Regulations etc. (Amendment) (England) Regulations 2023; PAS 8671, 8672, 8673
The Act provides for a statutory competence framework, supported by industry standards PAS 8671 (Built environment competence for individuals), PAS 8672 (Principal Contractor competence), and PAS 8673 (Principal Designer competence). The Building Regulations etc. (Amendment) (England) Regulations 2023 require all dutyholders to demonstrate the relevant competence before accepting appointment. The ARB Code 2025 Standard 1 reinforces this obligation for architects.
PAS 8673 is the key reference for the architect as BSA PD. It sets out skills, knowledge, experience, and behaviours expected. Examiners may ask how an architect should evidence competence for HRB work. PAS 8673 is the answer.
Criminal Offences for Duty Holders
BSA 2022 s.36 to s.43
The Act creates a suite of criminal offences for breach of building safety duties. Section 38 makes it an offence to contravene a building safety duty under the Building Regulations. Section 39 provides for an offence where a contravention causes serious risk to people in or around the building. Penalties on indictment include unlimited fines and, for the most serious offences, imprisonment up to two years. Officers of bodies corporate can be personally liable under s.41.
Criminal liability is personal. An architect acting as BSA PD cannot hide behind their employer. Section 41 means a director or senior manager can be prosecuted personally if the offence was committed with their consent, connivance, or neglect.
Building Safety Regulator Powers
BSA 2022 s.3 to s.20
The Building Safety Regulator is established within the Health and Safety Executive (s.3). The BSR has investigation, enforcement, and prosecution powers in relation to HRBs and to the wider building safety regime. The BSR can issue improvement notices, compliance notices, and stop notices. Appeals against BSR decisions go to the First-tier Tribunal.
Cladding replacement on 11-storey HRB: Gateway 2 with a late-arising fire strategy concern
Scenario
You are appointed as Principal Designer under s.31 BSA 2022 (and CDM PD) on the cladding replacement and balcony reinstatement of an 11-storey, 32-metre residential block constructed in 2009. The works trigger the Gateway 2 regime as building work to an HRB. The fire engineer has issued a draft fire strategy, the structural engineer has signed off the substrate, and the Principal Contractor has produced an indicative programme. Three weeks before the Gateway 2 submission deadline, the fire engineer flags that the proposed cavity barrier specification at balcony junctions may not be tested in the configuration shown, and the third-party warranty provider has asked for further evidence.
Analysis
Three duties bear on you simultaneously. As BSA PD under s.31 BSA 2022 and Reg 11A of the Building Regulations 2010 as amended, you must plan and manage compliance with the Building Regulations. You cannot sign the Gateway 2 statutory declaration under Reg 4 of the Higher-Risk Buildings Procedures Regulations 2023 if you are not satisfied the design complies. Knowingly signing a false declaration is a criminal offence with risk of imprisonment. As CDM PD under Reg 11 of CDM 2015, you must coordinate the design so that risks are eliminated or controlled and information flows to the Principal Contractor. As architect under Reg 9 CDM 2015, your design must also comply with the duty to eliminate or reduce foreseeable risk. The correct course is to delay the Gateway 2 submission. Your options: (1) Instruct further fire testing or a desk-top reasoned argument from the fire engineer evidenced by reference to BS 8414 or BR 135 data. (2) If testing is not feasible in time, redesign the cavity barrier specification to a tested configuration. (3) If neither is achievable, issue a formal written notice to the client that the Gateway 2 application must be delayed.
Outcome
You write to the client recommending a four-week delay to the Gateway 2 submission. The client initially objects on programme grounds, but you make clear in writing that you cannot sign the statutory declaration without resolved compliance evidence. The fire engineer produces a reasoned argument supported by published test data, signed off by an independent fire safety consultant. The Gateway 2 application is submitted, the BSR takes 11 weeks to determine, and approval is granted. The architect's professional position is protected by the documented refusal to sign without evidence.