The Health and Safety Executive (HSE) has announced that those responsible for the safety of occupied higher risk buildings (HRBs) in England will have six months, from April to October 2023, to register those buildings with the new Building Safety Regulator (BSR).
The announcement comes alongside the launch of a new Government campaign where those responsible for HRBs can sign up for further information to help them prepare to register.
Background
The 2018 Independent Review of Building Regulations and Fire Safety identified the need, following the Grenfell Tower tragedy, for a clearly defined dutyholder who can be held to account and will have statutory obligations for ensuring that fire and structural safety is being effectively managed in occupied HRBs.
Accordingly, the Building Safety Act 2022 (BSA) introduced the concept of the Accountable Person and the Principal Accountable Person. The rationale for defining a Principal Accountable Person is to ensure that there is a lead Accountable Person specifically responsible for various obligations under the new building safety regime. Amongst other things, the duties of the Principal Accountable Person will include:
- applying for registration of existing occupied HRBs; and
- submitting 'key building information' in respect of those HRBs within 28 days of the application for registration (as we discuss in further detail in this insight - Building safety: What key building information needs to be provided for occupied higher-risk buildings?).
What are higher-risk buildings and when are they occupied?
As we reported in our insight "What are higher-risk buildings?", the definition of HRBs in England has recently been confirmed: during the occupation phase, this refers to buildings that are at least 18m in height or have at least seven storeys, and contain at least two residential units.
A HRB is occupied if there are residents of more than one residential unit in the building. This is a low threshold: if a building has many residential units which are built but unoccupied, the BSA, and the requirement to register the HRB with the regulator, will apply once more than one residential unit is occupied.
What we know about the registration requirement
As set out in Sections 77-78 of the BSA:
- the Principal Accountable Person for a HRB commits an offence if the building is occupied but not registered - unless they have a 'reasonable excuse' for failing to do so;
- the penalties for breaching the registration requirement are potentially onerous, allowing for an unlimited fine and up to two years' imprisonment;
- the Building Safety Regulator may include a building on the register of HRBs if the required information has been provided and will also publish a copy of the register; and
- the requirements for the registration application will be defined in secondary legislation. This includes the form and content, information, and documents to be provided, the way in which the application needs to be made, etc.
Commentary
The HSE announcement confirms that registration will open in April 2023 and must be complete by October 2023. As noted above, the penalties for failure to comply are potentially onerous.
Moreover, as noted in our insight "Building Safety Act: Potential Personal Liability of Directors", liability for breaches of the registration requirement will, in certain circumstances, be extended to individual directors, managers, secretaries or other similar officers of a body corporate.
Accordingly, Accountable Persons or Principal Accountable Persons for existing HRBs should start taking steps to prepare for registration - including signing up for further information on the Government's campaign page - and be on alert for the publication of draft regulations, expected imminently, which will set out in detail the requirements for the registration application.
Draft regulations have already been published setting out the key building information that will need to be submitted within 28 days of an application for registration of an HRB. These are due to come into force on 6 April 2023. Our insight "What Key Building Information Needs To Be Provided For Occupied Higher-Risk Buildings?" provides further detail on this.
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