Requirements of the change control regime under the Building Safety Act 2022

A new change control regime — overseen by the new Building Safety Regulator (BSR) — has been introduced under the Building Safety Act 2022 (BSA) in relation to higher-risk buildings (HRBs) during the design and construction phase of a project. 

Here, Charlene Blears and Zoe Pond from our construction team provide an overview of the new change control regime and the associated requirements for construction projects.

What is the change control regime?

The new regime is implemented through the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the HRB Regs) — in particular, regulations 18 to 26 — which came into force on 1 October 2023.

The regime applies where there is to be a change to how a project is managed or to what is being constructed.

More specifically, it applies to a change to any plans, a change to any stage of HRB work (including adding or removing a stage) or a departure from strategies, policies or procedures in any document that has been approved through a building control approval application (which is submitted to the BSR during the Gateway 2 stage of a construction project and applies prior to the start of building work).

Under Reg. 18, there are two categories of controlled change: 

• Notifiable changes — a client must notify the BSR of a notifiable change in accordance with Reg. 20(1) before the work relating to that change starts but doesn’t need the BSR's approval before commencing construction.
• Major changes — approval from the BSR must be obtained before the work relating to that major change begins. This requires a separate application to the BSR for approval, i.e., a ‘change control application’ in accordance with Reg. 21. The BSR must determine the application within six weeks from receipt or within such longer period as the BSR and applicant agree in writing (Reg. 22).

While it’s for the client to decide if a controlled change is ‘major’ or ‘notifiable’, the BSR has the power to specify whether a controlled change is major or notifiable (Reg. 25). This means that the BSR can override a client’s decision in this regard.

What constitutes a notifiable change?

In summary, a notifiable change may include: 

• a change to the construction control plan, change control plan, partial completion strategy or staged work statement
• a change to the wall tie, wall restraint fixing or support system in any (or any proposed) wall (excluding an external wall)
• a change of any construction product or building element which has been (or is proposed to be) used in or on a proposed higher-risk building, such that the replacement is of an equivalent or higher classification under the reaction to fire classification
• any other change to the fire and emergency file or the fire safety compliance information.

What constitutes a major change?

In summary, a major change may include:

• a material change of use to any part of a proposed or existing higher-risk building
• a change which increases or decreases the external height or width of a proposed or existing higher-risk building
• a change to the number of storeys in a proposed or existing higher-risk building
• a change to the structural design or structural loading of the building
• a change to the number or width of the staircases in a proposed or existing higher-risk building or to the length, number or width of any escape route
• a change to the external wall of a proposed or existing higher-risk building including a wall tie, wall restraint fixing or support system in the wall
• a change to active or passive fire safety measures in a proposed or existing higher-risk building referred to in the fire and emergency file
• a change to the layout or dimensions of the common parts within a proposed or existing higher-risk building.

Further details of what constitutes a major or notifiable change are provided in a full list under Reg. 26.

Change control log — requirement to record changes

Under Reg. 19, the principal contractor or sole contractor must create and maintain a document for the purposes of recording information in respect of changes to the project (commonly referred to as a ‘change control log’). 

Any controlled change — whether ‘notifiable’ or ‘major’ — must be recorded in this change control log.

The BSA puts a greater emphasis on record keeping. The change control log effectively acts as an instrument for keeping an accurate record of all changes which pertain to the management or construction of a project. 

It’s also a means of creating greater accountability around changes that are made. When updating the change control log, the name of the individual recording the change and the names of those that were consulted (including a summary of the advice provided) must be included — along with other information set out in Reg. 19(2). In addition, the change control log may be used by dutyholders to show how the impact of changes have been considered.

Change control application requirements

A change control application must be made in writing by the client and meet the requirements set out under Reg. 21. 

In particular, it should include (among other things):

• a description of the proposed controlled change
• an explanation of the reasons why the change has been proposed
• a list of any individuals whose advice was sought in relation to the proposed change and a summary of that advice (such advice should of course be from those competent to give that advice and ideally be in the form of a report)
• a compliance explanation in relation to the proposed change 
• an assessment of the agreed documents affected by the proposed change
• a statement signed by the client confirming agreement to the application being made and that the information contained in the application is correct
• the revised version of the agreed document produced in accordance with Reg. 18(2)(b).

If a change control application doesn’t comply with the requirements set out in Reg. 21, it will not be valid. Where this is the case, the BSR will notify the applicant and provide reasons.

Ultimately, the circumstances in which the BSR may reject or grant a change control application (and whether or not such approval would be subject to conditions) are the same or equivalent to those which apply to building control approval applications.

In other words, it must comply with the requirements of Reg. 21, be sufficiently detailed and not contravene (or be likely to contravene) the HRB Regs, the Building Regulations 2010 (as amended) or any other applicable building regulations.

Key timeframes for controlled changes

For major changes, the BSR could take up to six weeks (or such longer period as the BSR and applicant agree) to make a decision on whether to approve a change control application or not.

In relation to notifiable changes, the BSR may request further information on the proposed change, which must be provided within ten working days.

Practical considerations for contract negotiations

The new change control process will mean increased administration (and possibly delay) during the construction phase if controlled changes occur — particularly for major changes.

For instance, while a BSR decision in relation to a major change is pending, no related work can be commenced or carried out. This may, in turn, result in delay to the progression of the works. During contract negotiations, consideration should be given as to whether such delay is to constitute a ‘delay event’ — and if so, whether that is to be compensable.

The use of technological advances at the outset of a project could help to reduce the risk of major changes. For instance, although detailed Building Information Modelling (BIM) can be costly, it may be a preferable and more cost-efficient investment to hedge against the uncertainty of mid-construction changes.

From a contractual standpoint, parties might also want to consider including provision for:

• extra time within project programmes to allow for the submission of applications for major changes
• mechanisms for granting extensions of time while awaiting a BSR decision
• extensions of time in the event that applications are rejected by the BSR.

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