The recent consultation, “Improving proportionality and safety outcomes in building control: telecommunications work”, has seen the relaxation of certain regulatory requirements for the telecommunications industry. This consultation sought a solution to the “unintended consequences” of the higher-risk building regime which was brought in by the Building Safety Act (2022) (BSA) post-Grenfell. The aim was to address the burdensome requirements imposed on the telecommunications industry when carrying out low-risk works and to create a more proportionate regulatory framework. However, the alternative solutions available, the regulatory treatment of comparable works, and the original purpose of the higher-risk building regime raise an important question: is this truly the proportionate response it is presented as?
The installation of mobile masts differs from fibre-optic cabling as there are structural considerations and therefore a higher risk profile. Mobile mast installations face two distinct challenges: delays arising from regulatory requirements and the inconsistent provision of the building information required before works can commence. Although the onerous administration has been somewhat relaxed, this solution hasn’t addressed the barriers these works are facing. Whilst complete exemption would be inappropriate, the current reforms fail to address the principal causes of delay and therefore fall short of a genuinely risk-based regulatory solution. For example, the BSR could have taken a more robust approach to enforcing the obligation on Principal Accountable Persons to provide the information necessary for works to proceed.
Furthermore, it is notable that these works are still largely bound by gateway three and therefore could continue to experience the same delays they are facing now. Due to the higher risk profile, perhaps Schedule 3A could present a solution, whereby a third-party, separate but appointed by the BSR, would be responsible for the sign-off on these works. This would alleviate administrative pressures on the BSR while maintaining appropriate oversight of higher-risk telecommunications works.
The “proportionate” response
The higher-risk building regime operates through a three-stage "gateway" approval system. This includes gateway two, which requires the approval of the Building Safety Regulator (BSR) before works can commence. This also includes gateway three, requiring BSR sign-off after completion, before a building can be registered. These requirements have reportedly resulted in delays of more than 30 weeks to essential telecommunications works, increased operational and financial pressures on the industry, and placed significant strain on the BSR's capacity to perform its wider regulatory functions. The “solution” has been to remove gateways two and three for building work that solely consists of the drilling of holes 25mm or less in diameter in internal or external walls for the installation of only fibre-optic cabling in existing higher-risk buildings, under the condition that the BSR is notified as soon as is practicable of the completion of the works. For the installation of mobile masts, gateway two has been removed but gateway three remains largely intact, removing only the obligation of the change control log. While these changes reduce administrative burdens, they leave substantive obligations, including dutyholder and competence requirements, unchanged. Providers must also ensure that any drilled hole is no more than 25mm in diameter, and mobile mast installations remain largely subject to gateway three requirements.An assessment of what would have been proportionate
The Building Regulations 2010 already contain regulatory models designed for low-risk, routine building works. Schedule 3 establishes the system of government-approved self-certification; this allows registered installers to carry out works without the cumbersome administrative procedures. This includes works such as installation of heating systems, ventilation systems and many more typical domestic works. Alternatively, there is Schedule 4 which provides for full exemption, works that do not require building notice or the deposit of full plans as they present minimal risk when carried out appropriately, such as replacing fixed electrical equipment. Like fibre-optic cabling, these are low-risk, standardised and high-volume forms of building work. The issue that the consultation was to address was the burdensome requirements that had unintendedly been placed on low-risk works carried out by the telecommunications industry. A genuinely proportionate response would have been to regulate these works in a manner consistent with comparable low-risk activities, whether through self-certification or, where appropriate, full exemption.The installation of mobile masts differs from fibre-optic cabling as there are structural considerations and therefore a higher risk profile. Mobile mast installations face two distinct challenges: delays arising from regulatory requirements and the inconsistent provision of the building information required before works can commence. Although the onerous administration has been somewhat relaxed, this solution hasn’t addressed the barriers these works are facing. Whilst complete exemption would be inappropriate, the current reforms fail to address the principal causes of delay and therefore fall short of a genuinely risk-based regulatory solution. For example, the BSR could have taken a more robust approach to enforcing the obligation on Principal Accountable Persons to provide the information necessary for works to proceed.
Furthermore, it is notable that these works are still largely bound by gateway three and therefore could continue to experience the same delays they are facing now. Due to the higher risk profile, perhaps Schedule 3A could present a solution, whereby a third-party, separate but appointed by the BSR, would be responsible for the sign-off on these works. This would alleviate administrative pressures on the BSR while maintaining appropriate oversight of higher-risk telecommunications works.
