Construct.law - Winter 2025
Building Safety in Wales
By Anna Frost and Salem Abuzaid
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By Mark White, Josh Risso-Gill, Sadie Pitman, Kate Knox and Laura Bushaway
Whilst England’s journey in implementing key parts of the Building Safety Act 2022 (BSA) is well advanced; the Welsh Government has the advantage of seeing how the secondary legislation has landed in England since its implementation back in 2023 and will no doubt be taking this into consideration as it starts its implementation journey.
In this regard, two key statutory publications have been made by the Welsh Government:
- The Building Safety (Wales) Bill, introduced in the Senedd (Welsh Parliament) on 7 July 2025 (the Bill), seeking to implement provisions from the BSA addressing the occupation phase of regulated buildings, and
- A Consultation document (the Consultation Document) on the new building control regime for higher-risk buildings and wider changes to the building regulations in Wales, issued by the Welsh Government on 26 March 2025. It has since closed, with the Welsh Government indicating that it plans to make the necessary secondary legislation later this year.
While many of the duties and requirements outlined in the Bill and the Consultation Document closely mirror those currently enforced in England, this article highlights several important distinctions for comparison.
The Bill’s Requirements for Occupied Buildings
What occupied buildings are covered?
In England, the regulatory regime for occupied buildings applies to any occupied building which is:
- At least 18 metres in height or at least seven storeys’, and
- Contains two or more residential units.
This excludes care homes, hospitals and military premises. The in-occupation regime in England therefore targets buildings which are classed as higher risk buildings (HRBs). In Wales, the Bill applies to regulated buildings containing two or more residential units, and are split into three categories:
- Category 1: At least 18 metres tall or with seven+ storeys.
- Category 2: Under 18 metres and fewer than seven storeys, but at least 11 metres tall or with at least five storeys.
- Category 3: Under 11 metres and fewer than five storeys.
Similarly to England, the Bill excludes certain building types from being “regulated buildings” (for example, buildings used solely for certain defence purposes, secure residential accommodation, hospitals, care homes and schools, as set out in Schedule 1). The introduction of categorisation of regulated buildings potentially allows for more tailored safety measures in Wales, which are based on the building size and risk, rather than a more blanket approach to all regulated buildings in England.
The Bill’s Requirements for Occupied Buildings
What is the New Regime?
In England, the in-occupation regime places responsibility on the accountable persons and principal accountable persons, who are responsible for the safety management of the HRBs. Key duties include registering HRBs, obtaining building assessment certificates, preparing safety case reports, and engaging residents in safety strategies. The Bill looks to follow a similar regime, with responsibility placed on accountable persons (AP) and principal accountable persons (PAP) for duties such as registration (for Wales, both Category 1 and Category 2 buildings are required to be registered, lowering the current registration threshold in comparison to England), risk assessments, and resident engagement strategies. Under the Bill, fire safety risk assessment and management duties apply to all regulated buildings, while structural safety risk assessment and management duties apply to Category 1 and Category 2 buildings. In addition, Category 1 buildings are subject to further duties placed mainly on the PAP includingpreparation and revision of a safety case report, establishing an occurrence recording system, reporting to authorities, applying for and displaying a building certificate and preparing and reviewing the residents’ engagement strategy.
The Consultation Document’s Proposals for the Construction Phase
The Welsh Government’s proposals cover:
- Dutyholders’ responsibilities and competence requirements
- Golden Thread of building information
- Gateway processes for HRB work
- Mandatory occurrence reporting of safety issues during construction
- Compliance and stop notices that give local authorities new enforcement powers
- New process for local authorities wanting to carry out HRB work
- Wider changes to building regulations including
- Reform of non-HRB work applications
- Automatic lapse of building control approval after 3 years
- Public bodies carrying out HRB work and the potential conflicts that this could create
- Transitional provisions
For those familiar with the changes implemented in England, most of the above will be very recognisable.
Two key areas of change for the construction phase are the introduction of:
- a dutyholders regime which will be applicable to projects which require building control approval (not just those containing residential accommodation and HRBs); and
- the gateways process for securing building control approval for HRB work.
Dutyholders Regime
The Consultation Document proposes five statutory dutyholder roles:
- Client (noting that the proposals also contemplate the creation of a sub-set for domestic clients and DIYers as a specific type of dutyholders with reduced responsibilities);
- Principal Designer;
- Designer;
- Principal Contractor; and
- Contractor.
These roles would carry statutory duties to plan, manage, and monitor work to ensure that the works satisfy the relevant requirements of the building regulations. Whilst one aspect of this will be compliance with fire safety, of course the building regulations cover a whole lot more. In England, the responsibilities of designers and Principal Designers to ensure that the works satisfy the relevant requirements of the building regulations was qualified to being required to take reasonable steps to ensuring satisfaction. This was in consideration of the fact that professional indemnity insurance policies typically do not extend to cover absolute obligations. Query whether the Welsh Government will decide to adopt the same concession in their regulations. The Welsh Government is likely to adopt the same dutyholder titles of Principal Contractor and Principal Designer as already used in the CDM Regulations, following the approach taken in England. There was concern around whether this would create confusion between the two statutory regimes; it remains to be seen whether, after a period of bedding in, these concerns will be allayed both in England and, if adopted, Wales. In line with England, specific to those undertaking HRB works, the Welsh Government proposes placing additional emphasis on the client's accountability regarding the competence of duty holders. Clients would be required not only to appoint competent dutyholders but also to formally assess and declare the competence of their Principal Contractor and Principal Designer as part of their gateway submissions.
Gateways Regime
As noted in the Consultation Document, the Building Safety (Description of Higher-Risk Building) (Design and Construction Phase) (Wales) Regulations 2023 defines higher-risk buildings for the new design and construction regime more broadly than in England. As with England, the height threshold is set at buildings which are at least 18 metres or seven storeys or more and contain residential accommodation or are hospitals or care homes. However, unlike England, the residential accommodation requirement is set at the lower level of at least one residential unit, rather than two. What isn’t entirely clear is how the specification of at least two residential units in the in-occupation definition of regulated buildings will align with the reference to one residential unit in the HRB definition in the regulation of the construction phase. The Consultation Document has proposed the principle of ‘hard stop’ approval points at critical stages of a project, introducing two gateways (with change control, mandatory occurrence reporting and site inspections between the two ):
- Gateway Two: which occurs before construction begins, requiring comprehensive design information to demonstrate that the functional regulatory requirements of the Building Regulations can and will be met (including with regard to fire safety) alongside competence declarations given by the Principal Designer, Principal Contractor and the client.
- Gateway Three: which takes place at completion of the HRB works and before occupation, with the provision of as-built information to demonstrate that the functional regulatory requirements of the Building Regulations have been met, alongside compliance declarations from the client confirming that to the best of their knowledge the higher-risk building work, as built, complies with applicable building regulations requirements and from the Principal Designer and Principal Contractor confirming that they have fulfilled their statutory duties. All of this documentation will form part of the golden thread of building information.
Interestingly, the proposals adopt the same periods set in England:
- 12 weeks for the determination of the Gateway Two application for new HRB works; and
- eight weeks for the Gateway Three applications.
Data has been recently published on whether these periods have been met by the BSR in England. At present, there are still significant delays in obtaining Gateway Two approvals. Between January to March 2025, 33% of applications had decisions made within the determination period. Of the 257 applications made, 76 were invalid, 62 were rejected, 37 withdrawn and only 82 were approved. A fundamental difference with how this regime applies in England is the identity of the building control authority. In Wales, it is proposed that the local authority will serve as the regulator for the HRB gateway regime, utilising local authorities for oversight. This contrasts with the approach in England, where the Building Safety Regulator (BSR), supported by a multi-disciplinary team, administers the HRB gateway regime; although the House of Lords Industry and Regulators Committee, chaired by Baroness Taylor of Bolton, has launched an inquiry into building safety regulation in England, with particular attention on the work of the BSR. Notably, where the local authority itself carries out HRB works, an alternate local authority will instead discharge the role, to address potential conflicts of interest.
Conclusion
The Bill was officially presented to the Senedd on 7 July 2025, initiating its legislative process. It is currently undergoing Stage 1 scrutiny, during which the Local Government and Housing Committee will evaluate its general principles and collect evidence. The Committee is anticipated to deliver its report by 29 November 2025. Should the Bill proceed as planned, it is likely to be enacted as Welsh law in early 2026. On review of the Bill and the Consultation Document, it can be said that the primary distinction between Building Safety in England and Wales lies in governance structures. England has implemented a centralised BSR, which oversees the design, construction, and occupation of HRBs. In contrast, Wales has opted for a local authority-led regulatory system. Rather than establishing a national body, local councils or designated authorities will be responsible for regulation, providing tailored oversight to meet regional requirements. However, there are many areas where there is consistency between the proposals for the Welsh dutyholders and HRB gateway regimes and what has already been implemented in England, particularly for those working on both sides of the borders. This article is intended to be a general introduction to the Building Safety (Wales) Bill as introduced to the Welsh Parliament and is not exhaustive. The Bill may be amended as it makes its way through the Welsh Parliament. This article does not constitute legal advice. Please contact your usual Charles Russell Speechlys LLP contact.