Construction Law Update: Phased by BCAR?
03 June 2015
It is now over a year since the Building Control (Amendment) Regulations 2014 came into force, and building industry players by now should be fully engaged with the compliance, inspection and certification regime enacted.
By way of re-cap, the Building Control (Amendment) Regulations 2014 ("BCAR") introduced a range of measures affecting applicable developments at the commencement, construction and completion stages, with implications for owners, builders, designers and certifiers as the lines of responsibility for design, construction and assessment of works were formalised.
An emerging issue arising out of the BCAR’s enactment, which has caused uncertainty on some commercial developments, concerns the concept of phased completion. The BCAR does contemplate a phased completion linked to a single commencement notice occurring, and states: “A Certificate of Compliance on Completion may refer to works, buildings, including areas within a building, or developments, including phases thereof … ”
The Code of Practice also states: “For buildings that are completed for occupation on a phased basis for example houses or apartment blocks, it is appropriate that Certificates of Compliance on Completion for each phase may be submitted separately… in such circumstances, one or more certificate of compliance on completion may be referenced to a single commencement notice. All Builders and Assigned Certifiers signing Certificates of Compliance on Completion should clearly identify the precise building units or works to which it relates. Where it is in order to do so, the Building Control Authority should accept the certificate for the particular phase and place it on the register.”
The complexity lies in that phrase – “where it is in order to do so” – and how it is to be interpreted, noting that the BCAR requires that a Certificate of Compliance on Completion must be accompanied by documentation which outlines how the works or building as completed “complies with the Second Schedule of the Building Regulations”. This schedule includes compliance requirements for typical whole-of-development concerns such as fire safety, structures, drainage and waste disposal, access, and ventilation.
In the absence of more specific guidance, one approach some developers have adopted is to assume that a Certificate of Compliance on Completion will only be validated where the works to which the Certificate relates - whether an area of a building, or a phase – complies with the BCAR on a stand-alone basis. To achieve this, the particular works, at the time of the certification, must address and comply with the separate requirements of the Second Schedule of the Building Regulations (Parts A to M) relevant to the works or building concerned. The upshot, from a project planning perspective, is that the construction programme might need to allow for certain works to be built and incorporated into the overall works at an earlier or advanced stage (including, e.g. temporarily during the shell and core works phase). This will enable subsequent phases to comply fully with the Building Regulations. Implied here is an acknowledgement that there is likely to be some interdependence of services, facilities and structures within a building or works, and some interrelation between the phases, impacting compliance at several points.
Although this is ultimately a completion issue, it raises challenging questions for project teams at the pre-commencement stage, and also has consequences for prospective purchasers and tenants, who may not be permitted to open, occupy or use a building or works until the relevant Certificate of Compliance on Completion has been validated, potentially giving rise to time and cost implications under forward agreements and trading arrangements.
The BCAR is an evolving piece and careful consideration should be given to structuring projects to maximise compliance with it, addressing risk contractually from the outset, and understanding your obligations as they apply to you.
For more information, please contact a member of our Construction team.
 (i) The design and construction of a new dwelling; (ii) an extension to a dwelling greater than 40 square metres; and (iii) works to which Part III of the Regulations apply (i.e. works requiring a fire safety certificate).