Important Building Control update - Regulation 38 and automatic lapse of Initial Notices

Registered Building Control Approver status

We are pleased to confirm that NHBC Building Control Services Ltd was registered as a Registered Building Control Approver effective from 6 April 2024. The registration extends across England and Wales and covers all building types including high risk buildings that have met the transitional provisions and will remain with NHBC Building Control through to completion.

All NHBC Building Control colleagues have successfully registered with the Building Safety Regulator in accordance with the transitional arrangements.

Regulation 38 – Fire safety information – applies in England

Under Regulation 38 of The Building Regulations 2010 you are required to provide fire safety information to the Responsible Person for buildings that are classified as ‘relevant buildings’ under the Regulatory Reform (Fire Safety) Order 2005 (ie, flatted developments with common areas or non-residential buildings/parts of buildings).

The changes to Building Regulations implemented on 1 October 2023 contained a requirement on new Initial Notices submitted after that date, for the Responsible Person to confirm that they had received the fire safety information and that it was sufficient for them to understand, operate and maintain the building in respect of those works.

The Building (Approved Inspectors etc and Review of Decisions) (England) Regulations 2023 which came into force on 1 October 2023, contained transitional provisions indicating that these additional requirements would only apply to new schemes. However, the Building (Registered Building Control Approvers etc) (England) Regulations 2024 which came into force on 6 April 2024 and supersede the 2023 regulations, failed to carry across these transitional provisions.

The impact of this is that from 6 April 2024 this additional confirmation from the Responsible Person will now be required on all applicable projects, regardless of when the Initial Notice was submitted.

Practically, this means that where sites have a previous Regulation 38 condition applied, which would have only asked for confirmation of the Responsible Person, we will need to update that condition to reflect the new requirements. In cases where you may have previously provided information in respect of the Responsible Person and the condition has been cleared, it will be necessary for us to reapply the updated condition to unfinalled plots and for you to provide the additional information.

In summary:

• plots that have been finalled – no change
• new sites submitted on or after 1 October 2023 – revised level of information and confirmation from Responsible Person already being requested
• plots on an all other existing sites that have not been finalled – condition will be updated or a condition reapplied advising that the revised information will be required.

Please note this only applies in England and only applies to plots in a relevant building as defined above To assist you in providing this information we have provided a Regulation 38 proforma.

Automatic lapse of Initial Notices

The provision for the automatic lapse of Initial Notices was introduced as part of the changes to the Building Regulations introduced on 1 October 2023. These changes were subject to transitional provisions that ended on 6 April 2024.

Initial Notices accepted on or after 1 October 2023

The following provisions apply to all sites where the Initial Notice was submitted on or after 1 October 2023.

For work on an Initial notice not to lapse, work should have commenced within three years of your Initial Notice being accepted or deemed accepted. This means that if work does not commence within this timeframe, the Initial Notice becomes invalid. This requirement is plot specific.

For example, if you submit an Initial Notice for 100 plots and three years after the anniversary of the Notice being accepted or deemed accepted, only 75 of those plots have commenced, the remaining 25 plots would be removed from the Initial Notice. If you wished to continue to build out the 25 plots that had not commenced, you would need to submit a new Initial Notice for these plots in line with the latest regulations.

What is commencement?

The Building Regulations define commenced as:

Complex building: Construction work on a complex building is considered commenced when the foundations and the lowest floor structure are completed. A complex building includes:

• structures built on the same foundation as other buildings
• buildings with more than one underground level
• buildings primarily intended for public use with a capacity for 100 or more visitors.

Building or horizontal extension: For standard building construction or horizontal extensions, work is considered to be commenced when the sub surface structure, including foundations, basements levels (if any), and ground floor structure is completed.

Other building work: For any other types of building work not falling under the above categories, work is considered commenced upon completion of 15% of the work specified in the Initial Notice.

Initial Notices accepted or deemed accepted before 1 October 2023

For Initial Notices that were accepted or deemed accepted before 1 October 2023, the new provisions relating to lapse of Initial Notice will not apply, provided that building work has commenced on site by 6 April 2024. This means that sites that have not had a recorded site inspection before 6 April 2024, will fall under the requirements of lapse of Initial Notice.

For example, any Initial Notice with an acceptance or deemed acceptance prior to 6 April 2021, with no site start, will automatically lapse on the 6 April 2024.

Sites that do not meet the transitional provisions will be subject to the new provisions relating to the automatic lapse of plans in the same way as new Initial Notices accepted after 1 October 2023. This means that the following requirements will apply:

• three-year lapse of Initial Notice for plots that have not reached commencement
• dutyholder notifications
• compliance declarations.

There are crucial steps required to comply with the commencement requirements for building work, as outlined in the regulations. It is essential to ensure that you follow these procedures to avoid any delays or complications on your project.

a) Notice before starting work: At least two working days before the start of building work, it is mandatory to provide a notice to us. This notice should clearly state your intention to commence work and specify the start date.

b) Notice of commencement: Not more than five working days after the commencement of work, you must provide a notice to us confirming that work has commenced. This notice is crucial to ensure compliance with the regulations.

Response to Rejection Notices: if we reject your notice of commencement, we will inform you of the reasons and the process to follow if you disagree with the rejection.

Forms for your use

We have provided proformas for start and commencement notices for your use which are available here. 

Here are some important tips to help you stay compliant with the new Building Regulations in relation to lapse of Initial Notice:

1. Review dates: Check the acceptance date of your Initial Notice. If it is approaching three years to the acceptance anniversary and you have not started building, you may need to consider taking action if you want the site to remain under the current notice.
2. Start construction promptly: Begin construction within three years of your Initial Notice being accepted to avoid automatic expiration on the three-year anniversary of its acceptance.
3. Maintain documentation: Ensure that dutyholder notifications are submitted and confirm acceptance by your NHBC surveyor within the timeframes as specified in the regulations.
4. Seek guidance: If you are unsure about any aspect of the regulations or how they apply to your projects, do not hesitate to contact your NHBC surveyor.

We understand that navigating these regulations may seem complex, but we are here to assist you. If you have any questions or concerns about your project or the status of specific plots, please contact your NHBC surveyor.