It's been nearly a year since the Building Safety Act 2022 (BSA) became law, 28 April 2022 to be exact. Since then we have seen big changes, including on 28 June 2022 (you may remember those limitation periods being extended from 6 years to up to 30 years), and there have been so many consultations since then that at times it has been hard to keep track of them all.
We are now about to see another significant set of changes, when several pieces of legislation and new rules come into force on 6 April.
What are they? Here's an overview of the key developments for you.
We now know what a "higher-risk building" is
The government has made the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (HRB Regulations) which come into force on 6 April 2023. (The government published a draft of these HRB Regulations in December 2022 and the final HRB Regulations are substantively the same as this December draft).
Under the BSA, the building safety regime is changing for "higher-risk buildings" (HRBs) and to a lesser extent non-HRBs – but while the BSA gave high level definitions of a "HRB" for the design and construction phase (under section 31 of the BSA) and separately for the occupation phase (under section 65 of the BSA 2022), it was always anticipated that the detail would be filled in by supplementary, or what we lawyers would call "secondary", legislation.
The new HRB Regulations referred to above are that secondary legislation. Very broadly, they provide that HRBs are buildings that are 18m or seven storeys high or more, and have two or more residential units. In the design and construction phase, hospitals and care homes are included, but once built and occupied, they are excluded as they are covered by different, pre-existing legislation (the Regulatory Reform (Fire Safety) Order 2005, if you must know). However, buildings comprising entirely of hotels, secure residential institutions (like prisons), or military barracks, and buildings containing living accommodation for military personnel, are excluded from being HRBs.
On top of that, there are other nuances to consider when working out whether your building is an HRB or not. The HRB Regulations contain a lot of detail, including about:
- How you work out where to measure your 18m or seven storeys from (eg where there is a basement level)
- When floors with plant rooms and machinery or galleries are included or excluded
- Which parts of the property or development are a "building" (eg where there are different extensions or independent sections to the property or development)
- Differences between new builds and refurbishment work (particularly when the building is already occupied).
As such, while we now have the detail to determine whether a building is an HRB, it's not necessarily going to be a straightforward "yes it is" or "no it isn't", and so getting familiar with the terms of the new HRB Regulations as soon as possible is going to be crucial.
The Building Safety Regulator starts with a focus on registration
The Building Safety Regulator (BSR), which was formed under the Health and Safety Executive (HSE), demands action from April 2023.
From that time, those responsible for the safety of HRBs in England have just six months to register their building with the BSR. It's estimated that there are around 12,500 of these buildings that will need to be registered.
The details on how to register your HRB are set out in new laws in the form of The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 (Registration Regulations) which come into force on 6 April.
The HSE has separately made it clear that "registering buildings in scope will be a legal requirement and owners and managers who fail to comply by October 2023 will be investigated and may face prosecution".
To support the registration process, the government is running a Building Safety Campaign giving guidance on how the "Principal Accountable Person" (more on this below) is to register their building.
It's important therefore to identify as soon as possible if you have a building that needs to be registered, who needs to register it, what information they need to register it (in line with the new Registration Regulations), and to make sure that it is registered by October 2023.
Accountable Persons step up to submit "Key Building Information"
The BSA (in its Part 4), introduced the new Accountable Person (AP) and Principal Accountable Person (PAP).
For every occupied HRB, there should be an AP and PAP (sometimes they are the same person). Very broadly:
- The AP is the person or organisation that owns the building or has responsibility for it
- If there's more than one AP for a building, the AP responsible for the repair of its structure and exterior is the PAP
- If there's only one AP, they are the PAP.
As with determining whether a building is an HRB or not though, depending on the circumstances, working out who the AP and PAP are may also not be straightforward.
In considering early tasks for the PAP, be aware of the new Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 (Building Information Regulations) setting out "key building information" that has to be provided by the PAP (in electronic format) to the BSR following an application to register a HRB (as mentioned above). It also lists out particular duties for the AP and PAP in relation to key building information.
The Building Information Regulations come into force on 6 April 2023, and are to all intents and purposes in the same form that we have previously written about here (and bear in mind that key building information is not the same as the "golden thread").
One important point worth noting is that at Regulation 20, the "key building information for a higher-risk building must be submitted within 28 days of the PAP submitting an application for registration of that higher-risk building". So it would be best to have this information ready when or as soon as possible after the PAP registers the building with the BSR.
Article updated July 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.