The building control landscape has shifted significantly in the last few years. For commercial stakeholders, the direction of travel is clear: earlier engagement, clearer accountability, and more robust evidence of compliance across a building’s life cycle. This article highlights the practical implications for acquisitions, development and asset management, and sets out steps to protect value and reduce transactional friction.
Why building regulations now sit at the heart of commercial deals
Regulatory risk now touches title, valuation and exit strategy. Buyers and funders expect an auditable compliance trail, not just comfort that “the works looked fine at the time.” Where that trail is thin, pricing chips, conditionality and delayed completions follow. A failure to secure approval exposes owners to local authority enforcement under section 36 of the Building Act 1984, including rectification notices, cost recovery, and in serious cases applications for injunctions, with the latter not subject to a fixed limitation period. Prosecutions in the magistrates’ court are generally reserved for deliberate breaches and typically target the builder, with fines imposed.
In short, non‑compliance is a value issue as much as a legal issue. Historic works carried out without approval may indicate safety concerns, can depress value and will prompt buyers to require remediation, price reductions, or indemnity insurance.
The new regime: where we are now
The framework has been recast following the Building Safety Act 2022 and consequential regulations. From 1 October 2023, the building control system in England was substantially reworked, with best practice still bedding in across authorities and the market.
For non‑high‑risk buildings, applicants can still seek approval via the local authority or a registered building control approver, and some specified works may proceed under competent person self‑certification schemes. Approved inspectors have transitioned to registered building control approvers, with approved inspector status ending on 6 April 2024.
Higher‑risk buildings (HRBs) occupy their own, stricter lane. HRB work is overseen by the Building Safety Regulator with a gateways structure, enhanced duties and a statutory change control process; registered building control approvers cannot supervise HRB work.
Completion evidence also matters more. Local authorities issue completion certificates within eight weeks of notification where satisfied, and those certificates are evidence, though not conclusive evidence, of compliance.
Transitional wrinkles to watch
Legacy schemes straddling old and new rules require careful diligence. Transitional protection for non‑HRBs required plans to be deposited or an initial notice accepted before 1 October 2023, and physical works to have started by 6 April 2024. Where initial notices of approved inspectors persisted, any elements not covered by a final certificate will lapse on 1 October 2024 if the inspector did not become a registered building control approver.
For HRBs, commencement thresholds and notices are critical. To benefit from HRB transitional arrangements, an initial notice or full plans had to be in place before 1 October 2023, and work be sufficiently progressed by 6 April 2024, with timely notifications to the local authority and, in some cases, confirmation that an approved inspector became a registered building control approver.
Regularisation and indemnity: useful, not perfect
Regularisation can unblock transactions, but it is no cure. Owners may apply for a regularisation certificate for unauthorised works carried out since 11 November 1985; the authority may charge a fee and assess the works against the standards in force when the works were originally done. The regularisation certificate is evidence, albeit not conclusive evidence, of compliance.
Indemnity insurance against enforcement can be helpful but is not a substitute for approval, and seeking regularisation may invalidate cover by alerting the authority.
For HRBs, the bar is higher. The BSR has discretion on regularisation, and government policy signals that regularisation is not intended to retrospectively validate larger or significant HRB projects, with potential for stop or compliance notices where parties attempt to bypass the regime.
Practical implications for commercial property
- Acquisitions and disposals. Prudent buyers verify that all works were carried out in accordance with building regulations and may insist on remediation and certification pre‑completion, price adjustments, or indemnity solutions where gaps exist. Build‑to‑rent, PBSA, healthcare and arena schemes should also map HRB status early and plan for gateways and change control.
- Development and funding. Local authority approval routes include the full plans application and, for limited scenarios, a building notice; fire‑sensitive and drainage works often disqualify the building notice route. For private oversight, ensure the approver is properly registered and that initial notices are accepted before works start; if withdrawn or rejected, local authorities can step in and may require opening up, with additional cost and delay. Work commenced without approval is “at risk” and may need to be uncovered or remediated if compliance is in doubt.
- Asset management. Maintain a single source of truth for all approvals, plans, variations, competent person certificates and completion or final certificates. For mixed‑use campuses, consider whether a regulator’s notice is advantageous. Where HRB and non‑HRB works sit on the same site with the same client and principal contractor, the BSR may, by regulator’s notice, act as building control authority for all work, subject to tight conditions and a five‑day rejection window for local authorities.
- Timing risk. Any building control approval now lapses after three years if works have not “commenced” per regulation 46A thresholds, which vary by building complexity and scope. Programme slips can therefore strand approvals and trigger re‑submission under a less favourable regime.
- Wales is mid‑transition, with full implementation completing on 1 July 2026; dutyholder‑style requirements and an updated HRB regime will bite from that date, though some features already differ from England, including a wider HRB definition and local authority oversight of HRB works.
If you need assistance the team at Davies and Partners’ Commercial Property Team can help, please contact Constantine Berry: e: constantine.berry@daviesandpartners.com
