On 24 January 2023, the UK Government published its response to certain sections of its consultation on the new safety regime for higher-risk buildings under the Building Safety Act 2022 (BSA). As we reported in our insight "What are higher-risk buildings?", the definition of higher-risk buildings (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.
Alongside the consultation response, the draft Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 ("the draft regulations") have also been laid before Parliament, and are expected to come into force on 6 April 2023.
Background
The consultation ran from 20 July to 12 October 2022 and relates to Part 4 of the BSA. Part 4 sets out the new safety regime for HRBs once they are occupied, including registration and certification, the duties of the accountable person and principal accountable person, the contents, management and storage of the 'golden thread' of information, safety reporting and resident liaison.
As described in our insight "Building Safety Act 2022: Key consultations closing on 12 October", the consultation was one of two consultations which ran in parallel from July to October 2022. The other consultation related to Part 3 of the BSA, which establishes the new, more stringent building control regime for HRBs. The Government response on Part 3, and publication of draft secondary legislation implementing this new regime, is also expected in the near future.
What do the draft regulations cover?
The draft regulations set out:
- what constitutes "key building information" in respect of HRBs;
- the duties and provisions in relation to submitting key building information; and
- how to determine for which parts of a higher-risk building an accountable person is responsible under Part 4 of the BSA.
What is 'key building information'?
'Key building information' is defined in regulations 3 to 18 and includes information relating to:
- the principal use of the HRB, any ancillary building or outbuilding, and any storey below ground level;
- the subordinate use (i.e. "any use other than the principal use") of the HRB (except in respect of a residential unit in the HRB), any ancillary building or outbuilding, and any storey below ground level;
- whether there has been any change to the principal use of the HRB since its construction;
- the external wall system material, insulation and percentage coverage;
- the type, material and percentage coverage of roof covering or roof system;
- types and materials of external fixtures;
- main material used in, and the type of structural design of the building;
- the total number of staircases, the number that serve all floors, and the number of storeys below ground level;
- energy supply to the building;
- type of evacuation strategy that is in place for the building; and
- a list of the fire and smoke control provisions and equipment within the building.
It was initially proposed that information on the fire safety design standard would also be part of the key building information (for example, whether the building followed a certain code or standard to ensure the fire safety of the building). However, the Government response notes that this will be optional rather than mandatory information, taking into account feedback from the sector that this information may not always be available for existing buildings / could not be obtained within the timeframe without significant cost.
When must 'key building information' be submitted?
The principal accountable person is responsible for submitting this information to the Building Safety Regulator (the Regulator), i.e. the Health & Safety Executive (HSE), within 28 days of an application for registration of occupied HRBs in England.
The Regulator must also be updated whenever the key building information changes, within 28 days of the principal accountable person becoming aware of the change.
When is a higher-risk building 'occupied'?
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.
Commentary
We understand that registration of existing occupied HRBs with the Regulator - of which there are believed to be around 13,000 in England - is likely to open in April 2023. The deadline for registration of all HRBs in England is currently expected to be in October 2023.
Accordingly, accountable persons / principal accountable persons for existing HRBs should start collating key building information as soon as possible. In cases where such information is not readily available, e.g. older buildings, surveys may need to be commissioned and carried out in order to obtain the information required.
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