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The Building (Amendment) Regulations 2016 – building infrastructure for a better future?

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19/12/2016

Introduction

The Building (Amendment) Regulations 2016 [1] (the Amendment Regulations), which came into force on 9 May 2016, transpose into our domestic law Article 8 of Directive 2014/61/EU [2] (the Directive).  The Directive sets out measures to reduce the cost of installing high-speed electronic communications networks with the aim of reducing the future costs and obstacles to deployment of superfast broadband.

What do the Amendment Regulations do and when do they apply?                                         

The Regulations introduce into Schedule 1 of the Building Regulations 2010 [3] a new Part R requiring that all new buildings (and those undergoing major renovation works) are equipped with the in-building infrastructure necessary to support superfast broadband connectivity [4].

The requirements of Part R only extend to the physical infrastructure required for the building, and not any infrastructure that may be placed within the curtilage of the site. With regard to major renovation works, Part R only applies to the extent that the existing in-building physical infrastructure is being renovated (either wholly or across a significant part).

Whilst the Amendment Regulations came into force on 9 May 2016 there is a transitional period in place meaning that compliance will only apply where a building regulations application is submitted after 31 December 2016.

Are there any exemptions?

The Amendment Regulations provide for exemptions to the requirements for compliance which include works to the following types of buildings:

  • those under section 1 of the Planning (Listed Building and Conservations Areas) Act 1990 (the 1990 Act); and
  • those in a conservation area designated in accordance with section 69 of the 1990 Act ;
  • where compliance would unacceptable alter their character or appearance;
  • those occupied by the Ministry of Defence, the armed forces of the Crown or otherwise occupied for purposes connected with national security; and
  • those situated in isolated areas where the prospect of high-speed connections is considered too remote to justify equipping the building with the necessary infrastructure of access point.

There is also an exemption from compliance with Part R for works in cases where the cost of installing the necessary infrastructure would be disproportionate to the benefit gained. Whilst it might seem that this exemption could be of wide application, a circular from the Department for Communities and Local Government states that they anticipate that there will be very few instances where the exemption would be acceptable. A case by case assessment would need to be made by inspectors as to whether the costs that would be incurred in meeting the requirements are actually disproportionate to the benefit of enabling superfast broadband connections.

What are the penalties for non-compliance?

A failure to comply with the Part R requirements carries with it the same implications as any breach of the Building Regulations 2010. The local authority building control service can therefore serve an enforcement notice, apply for an injunction or prosecute in court where the Amendment Regulations have been contravened.  A court prosecution could lead to an unlimited fine and an additional £50 per day for each day that the contravention continues after conviction.

Even in circumstances where enforcement action is not taken, a completion certificate will not be issued which could cause problems on a sale or letting albeit a regularisation certificate could be obtained.

Where can additional guidance be found?

The Government has issued additional guidance on the application of the Amendment Regulations in the form of Approved Document R. This provides practical guidance as to the types of infrastructure that are covered by the Amendment Regulations, diagrammatical examples and a useful glossary.  Approved Document R can be accessed here.

WM comment

The Amendment Regulations could impose significant additional responsibilities and involve considerable expenditure for new developments and major renovations to existing buildings. As is often the case, the legislation itself provides very little guidance on the exact technical specifications of infrastructure that will be required to satisfy the Amendments Regulations though Approved Document R does go some way to filling in the missing detail.  Should you require further advice on the Amendment Regulations from a legal perspective, please do not hesitate to contact us.

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[1] SI 2016/490 which came into force on 9 May 2016
[2] Dated 15 May 2014
[3] SI 2010/2214
[4] Part R does not however require an actual connection to superfast broadband.