The Welsh Government has published a consultation on its proposed definition of higher-risk buildings (HRBs) in Wales. This follows the passing of the Building Safety Act 2022 (Commencement No. 2) (Wales) Regulations 2022 on 6 December 2022, which brought into force various sections of the Building Safety Act 2022 (BSA) that empower the Welsh Government to define the term "higher-risk building". The consultation is due to close on 12 May 2023.
As is now well-documented, the BSA has brought forward a package of legislative changes in relation to building regulations, building safety and fire safety – some of which apply to Wales. The Welsh Government's consultation paper explains, amongst other things, that for Wales, the BSA "contains legislative changes to establish new design and construction processes, oversee the competence of those who operate in the system, and other improvements to support the building of safer buildings generally".
In particular, section 31 of the BSA empowers the Welsh Ministers to define "higher-risk building" for the purposes of the design and construction phase.
As we reported in our recent insight, the definition of a higher-risk building (HRB) in England has recently been confirmed. On 20 December 2022 the Government published its response to a consultation in England, alongside the draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 which are due to come into force in England in April 2023. These define a HRB in England during design and construction as a building that is at least 18 metres in height or has at least seven storeys and:
- contains at least two residential units;
- is a care home; or
- is a hospital.
We consider the Welsh proposals in more detail below.
Proposed definition of HRBs in Wales
The consultation sets out the Welsh Government's proposed definition of a HRB. It notes however that this definition will only apply to the design and construction phase and for any works to existing buildings that require building regulation consent. It will not apply to the occupation phase: the definition of HRBs falling within the new building safety regime for occupied HRBs in Wales may therefore be different.
It is proposed that a HRB in Wales during design and construction is defined as a building that is at least 18 metres in height or has at least seven storeys where it:
- also contains at least one residential unit; or
- is a hospital; or
- is a care home.
The proposal mirrors the definition of a HRB in England, save for a suggested reduction in the definition for the requirement of two residential units to one. The consultation paper notes that: "this change is being proposed to align with the requirements for combustible cladding and also to take into account that the primary risk of fire where people are sleeping on the premise. The sleeping risk is associated with a single dwelling and is not limited to building with two or more units."
The proposed exclusions from the definition of a HRB in Wales are the same as those excluded from the definition of a HRB in England, namely:
- secure residential institutions (e.g. prisons);
- temporary leisure establishments (e.g. hotels); and
- military premises (e.g. military barracks).
The implementation of the BSA in Wales more generally arose as a topic for discussion in the First Minister's questions in the Welsh Parliament recently, with Andrew RT Davies (leader of the Welsh Conservatives in the Senedd) calling for the leaseholder protections set out in sections 116 to 125 of the BSA to be adopted in Wales. These sections address remediation orders and remediation contribution orders, which we described in our recent insight, and which are aimed at protecting leaseholders in multi-occupied residential buildings from the costs associated with remediating historical building safety defects.
In response, the First Minister Mark Drakeford appeared to confirm that these provisions will not be brought into force in Wales, noting instead that: "whereas sections 116 to 125 require leaseholders to instigate legal action against a developer who they consider is not remediating fire safety defects, in Wales it will be the Welsh Government who will take that action on behalf of the leaseholders so that they don't end up having to foot the bill for doing so."
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