On 20 December 2022, the Government published its response to its consultation on the definition of "higher-risk buildings" (HRBs) under the Building Safety Act 2022 (BSA). As we reported in our previous insight, this consultation ran from 9 June to 21 July 2022, and sought views on how to define a "Higher-Risk Building" for the purposes of determining which buildings would fall within the scope of the new more stringent building safety regime established by the Building Safety Act 2022.
The Government has also published the draft secondary legislation which will implement this definition in England:1 the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (the Regulations). The Regulations are expected to come into force in April 2023.
We examine below some of the key points in the Government's consultation response, as well as the definitions set out in the draft Regulations of HRBs in England during both the design and construction phase.
As noted above, the consultation sought views on how to define a "Higher-Risk Building" for the purposes of determining which buildings would fall within the scope of the new regime. It is important to note that this regime will fall into two parts (i) the new regime for the design and construction of new HRBs and building work to existing HRBs; and (i) the new regime governing the occupation phase of HRBs.
Definition of HRBs in England during design and construction
The draft Regulations define a HRB during design and construction – under section 120D of the Building Act 1984 (inserted by section 31 of the BSA) – 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.
The Regulations expressly exclude from this definition buildings that comprise entirely of:
- secure residential institutions;
- hotels; and
- military barracks and livings accommodation for military personnel.
Definition of HRBs in England during occupation
Section 65 of the BSA defines a HRB during occupation as a building that is at least 18 metres in height or has at least seven storeys and contains at least two residential units.
The draft Regulations confirm (in regulation 8) that the definition of HRBs in England during the occupation phase, for the purposes of section 65, will exclude buildings that comprise entirely of:
- care homes;
- secure residential institutions;
- hotels; and
- military barracks and living accommodation for military personnel.
Therefore, as the consultation had indicated, whilst care homes and hospitals are included in the design and construction part of the new regime, they are not included in the in-occupation part of the new regime since they are regulated as workplaces through the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order) and are therefore already subject to duties placed on those in control of these buildings to make sure the premises are safe.
The rationale for excluding hotels and secure residential institutions from both parts of the new regime is also that they are already regulated by the Fire Safety Order and are generally staffed 24 hours per day, have multiple routes of escape, signage and emergency lighting to assist evacuation and a higher level of detection and alarm systems than residential buildings. Similarly, military premises are also excluded as they are subject to their own specific fire safety requirements.
The draft Regulations also indicate that the 18 metres height definition will be based on the height from ground level on the lowest side of the building to the top of the floor surface of the highest occupied storey of the building. Any storey which contains only machinery or plant is excluded from consideration.
In the Explanatory Notes to the draft Regulations, the Government notes that around 13,000 existing buildings will fall within the definition of HRBs and therefore be subject to the in-occupation regime (being at least 18 metres in height, or with at least seven storeys, and having at least two residential units). They estimate that on average a further 490 new buildings meeting the definition will be constructed each year, and will be subject to the new regime for design and construction.
1 HRBs in Wales will be separately defined in regulations to be issued by the Welsh Government. On 9 December 2022, the Building Safety Act 2022 (Commencement No. 2) (Wales) Regulations 2022 came into force, and brought into force various sections of the Building Safety Act 2022 (BSA 2022) that empower the Welsh Government to define the term "higher-risk building".
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