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The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 and Transitional Works


The much anticipated Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the “Procedure Regulations”) formed part of a suite of secondary legislation under Building Safety Act 2022 (“BSA 2022”) laid before Parliament on 17 August and due to come into force on 1 October 2023.

For higher-risk buildings where works have not yet commenced the position is (relatively) simple – the Procedure Regulations will apply. However, the position is somewhat more complex for higher-risk buildings which will be part way through construction on 1 October.

What is a Higher-Risk Building?

The definition of what constitutes a higher-risk building  (“HRB”) is set out in s120D Building Act 1984 (“BA 1984”) and s65 BSA 2022, as amended by the Higher-Risk Buildings (Descriptions and Supplemental Provisions) Regulations 2023 as follows:

a building which (a) is at least 18m in height or has at least seven storeys; and (b) contains at least two residential units.

Applicability of the Procedure Regulations to Transitional Works – Schedule 3 of the Procedure Regulations

Requirements from 1st of October 2023

The first key date for developers and employers with works to HRBs in progress is 1 October, when the Procedure Regulations first come into force.

To avoid falling within the requirements of the Procedure Regulations and, amongst other matters, the obligations associated with Gateways Two and Three and the Golden Thread of information, the developer/employer must, by 1 October, have either:

  • Given the Initial Notice under s47 BA 1984 to the local authority, and the local authority accepted (or deemed accepted) the notice; or
  • Deposited full plans with the local authority.

What if Building Control Approval Lapses, an Initial Notice is Cancelled or Full Plans are Rejected?

If the works do not meet the criteria of Schedule 3 of the Procedure Regulations, then the Procedure Regulations will apply to the works and the developer/employer will have to comply with these, including the requirements of Gateways Two and Three and the Golden Thread of Information,

Sufficient progress by 6th of April 2024

If the Initial Notice is accepted or full plans deposited by 1 October, developers and employers will need to look to 6 April 2024.

Works must have “sufficiently progressed” by 6 April 2024 or they will be caught by the Procedure Regulations.

The definition of “sufficiently progressed” is found within Schedule 3 Paragraph 1 of the Procedure Regulations. Whilst purporting to apply to paragraph 1 only, in the absence of any additional definition it is presumed that this definition is intended to apply throughout Schedule 3.

In order to be regarded as sufficiently progressed:

  • For construction of an HRB, concrete must have been poured for permanent foundations;
  • For works to an existing HRB, works must have “started”; and
  • For works to effect a material change to the use of an HRB, where  work to effect the change of use has “started”.

What constitutes works ‘starting’ is not defined; however, commencement has been defined in the Procedure Regulations and in the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (which change the Building Regulations 2010) as being 15% of the proposed work.

Works must have “sufficiently progressed” to each individual HRB within a development. It is not sufficient for concrete to have been poured or works commenced to only one block within a larger site. In those circumstances it is likely that only the block would be a transitional building.

Within five working days of works being deemed “sufficiently progressed”,  and in any event prior to 6 April 2024, a developer/employer must notify the local authority (and any approved inspector) of this progress.

If this criteria is met, the works will not be caught by the majority of the Procedure Regulations:

  • The Local Authority remains as Building Control;
  • New change control requirements do not apply;
  • Golden thread requirements do not apply;
  • Mandatory occurrence reporting does not apply;
  • Extended handover requirements do not apply; and
  • Gateway Three and the requirement to provide a completion certificate do not apply (with an obligation to instead obtain a completion certificate under Regulation 17 Building Regulations 2010 and a final certificate by an approved inspector in accordance with The Building (Approved Inspectors) Regulations 2010).

What if Works are Not Sufficiently Progressed by 6 April 2024?

If no such notification is given and works are not sufficiently progressed, the transitional provisions of Schedule 3 of the Procedure Regulations will apply, which differ depending upon whether works are governed by an initial notice or full plans.


The secondary legislation of the BSA 2022 continues to come in thick and fast, with limited time between publication and enforcement. The relatively short period to (a) get an initial notice / plans in and (b) the six month window within which works must have “sufficiently progressed” means it is likely many HRBs will fall within the Procedure Regulations. The relative flexibility of works to existing HRBs/material change of use needing to have “started” versus the more prescriptive pouring of concrete may mean that the construction of new HRBs are more likely to be caught, and that seems to be the intention of the government. Most in the built environment will have prepared for this but it is helpful to (finally!) obtain clarity.

The next challenge is working out, now we have the detail, what procurement, contract and working practice changes are required due to the new suite of regulation, and how it might affect viability of ongoing and planned work.

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