Alterations to a Flat in a Higher-Risk Building: When Do You Need Building Safety Regulator Approval?
We receive many questions from homeowners and prospective purchasers of flats and apartments in higher-rise residential buildings.
Typically, they sound something like this:
“Can I remove a wall in my flat? I’ve been told it’s non-structural, so surely it doesn’t need Building Regulations approval?”
“Can I change my kitchen in a Higher-Risk Building?”
“Can I replace my windows?”
“Can I strip out my flat while I wait for Building Safety Regulator approval?”
The answers are not always as straightforward as people expect.
First, some terminology.
In England, a residential building will generally fall within the higher-risk building regime for building work where it contains at least two residential units and is either at least 18 metres high or has at least seven storeys.
These buildings are generally referred to as Higher-Risk Buildings, or HRBs.
Where building work is proposed to an existing HRB, the Building Safety Regulator (BSR) is the building control authority and, unless the work falls within one of the exemptions, building control approval must be obtained before that work starts.
This is sometimes loosely referred to as “Gateway 2”. More accurately, for an existing HRB it is a building control approval application to the BSR, with the proposed work falling into Category A or Category B.
“The wall isn't structural, so I don't need Building Regulations approval?”
Not necessarily.
One of the misconceptions we encounter regularly is that Building Regulations are only concerned with structure.
They aren't.
A wall can be non-loadbearing but still have implications for fire safety, means of escape, ventilation, accessibility, compartmentation, services or other requirements of the Building Regulations.
Importantly, where building work to an existing HRB changes the internal layout, the BSR categorises that work as Category A.
So simply being told by a builder, surveyor or even a structural engineer that a wall is “non-structural” is not, by itself, enough to determine whether BSR approval is required.
The first step should therefore be to establish exactly what is proposed and whether it constitutes building work requiring approval.
Existing HRBs can make this more complicated because historic information about the structure, construction, fire strategy and previous alterations is often incomplete.
Part of the purpose of the new regime is to create and maintain an accurate digital record of information about the building – commonly referred to as the Golden Thread.
For owners undertaking work within an HRB, that means recording what has actually been changed, how it was designed and how compliance with the Building Regulations has been demonstrated.
“Can I change my kitchen in a Higher-Risk Building?”
Potentially, yes.
Not every piece of work carried out within an HRB requires a building control approval application.
There are categories of exempt work, together with certain works which can be undertaken through an appropriate Competent Person Scheme.
For example, replacing a sink may be exempt work, while some electrical installations may be capable of being undertaken through a Competent Person Scheme.
But the phrase “changing the kitchen” can mean very different things.
Replacing cupboards and worktops is quite different from removing walls, altering ventilation, changing drainage, moving fire-resisting construction or substantially altering electrical and mechanical installations.
A kitchen refurbishment can therefore begin as straightforward replacement work and very quickly become building work requiring BSR approval.
Our advice is to have the proposed scope reviewed before work starts by someone who genuinely understands the higher-risk building regime.
For LRAR, that means looking at the project both as architects and as Building Regulations Principal Designers, rather than simply asking whether an individual trade believes its particular piece of work requires approval.
“Can I replace the windows in my flat?”
This requires particular care.
Replacement windows are capable of being carried out through authorised Competent Person Schemes, and work undertaken properly within such a scheme may not require a separate building control approval application to the BSR.
However, anyone proposing this route should establish that the particular scheme and installer can undertake that work within a Higher-Risk Building.
There is also a practical issue.
A window in an HRB is not simply a piece of glass and a frame.
Removing an existing window can expose or disturb cavity barriers, fire stopping, interfaces with the external wall, insulation, membranes, fixings and other parts of the façade construction.
Where the work affects the external wall or passive fire safety measures, the implications under the HRB regime become considerably more significant.
And if replacement windows form part of a wider project that requires BSR approval, they cannot simply be carved out of that project because one element could otherwise have been undertaken through a Competent Person Scheme.
Planning permission may also be required, particularly where the appearance, material, proportions or opening arrangement of the windows changes, or where the building is within a Conservation Area.
Planning and Building Regulations are separate regimes.
Leasehold and freeholder consent may be separate again.
So the answer isn't simply “yes” or “no”: it is don't order the windows until someone competent has checked the proposed route.
“Can I strip out the flat while I'm waiting for BSR approval?”
Be very careful.
The client must ensure that any building work requiring BSR approval does not start until that approval has been granted.
There is an obvious difference between removing a carpet and removing a wall.
Decorative works such as taking down wallpaper, lifting carpets or removing loose furniture would not ordinarily be building work – although the terms of the lease and any freeholder requirements still need to be considered.
Once the strip-out begins to involve elements such as walls, ceilings, fire doors, services, fire stopping, construction around the façade or anything else which could affect compliance with the Building Regulations, the position changes.
We have recently encountered situations where seemingly innocuous items were being removed before anyone had properly considered their Building Regulations function.
A door, for example, may simply look like an old internal door. But if it forms part of the building's fire safety strategy, removing it is a very different proposition.
This is one reason why beginning a wholesale strip-out before the design team has properly assessed an HRB alteration can create substantial problems.
And carrying out building work without the required BSR approval is not simply an administrative technicality: it can constitute a criminal offence.
Approval is only the beginning
Another misconception is that obtaining BSR approval is the end of the process.
It isn't.
During construction, the approved design needs to be followed, relevant changes need to be properly managed and the information forming the Golden Thread needs to be maintained.
Once work to an existing HRB is complete, an application must then be made to the BSR for a completion certificate.
So there is a complete regulatory journey:
Understand the building → define the work → establish whether approval is required → prepare the design and compliance information → obtain BSR approval → construct compliantly and manage changes → obtain the completion certificate.
Talk to us before you start
The simplest – and usually least expensive – point at which to resolve these questions is before work begins.
LRAR is an architectural practice providing architecture, planning, interiors and compliance services. We also act as Building Regulations Principal Designer and CDM Principal Designer and have practical experience of applications involving both new and existing Higher-Risk Buildings.
If you own, are purchasing or are considering altering a flat within an HRB, give us a call.
A short conversation at the beginning can often establish whether the work is straightforward, whether specialist advice is required and whether an application to the Building Safety Regulator is likely to be necessary.
This article provides general guidance only. The regulatory requirements depend upon the building and the precise scope of proposed work, and project-specific professional advice should be obtained before starting work.
