The Government responds to a consultation on in-occupation regime for building safety in higher-risk buildings.
On 20 July 2022, the Department for Levelling Up, Housing and Communities published a consultation seeking views on proposed new regulations aimed at improving building safety in occupied higher-risk buildings. The consultation ran until 12 October 2022, and on 24 January 2023 the Government published its response in advance of The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 ("the Regulations") coming into force later this year.
The consultation sought views on the new regulatory regime, introduced as part of Dame Judith Hackitt's recommendations on managing fire and structural safety risks in occupied high-rise residential buildings following the Grenfell tragedy. The Regulations seek to put in place stronger duties on those responsible for the safety of these higher risk buildings throughout their design, construction and occupation.
In particular, the consultation considered:
- the part or parts of a building for which an accountable person is responsible; and
- the information to be included in the 'key building information' – both when first submitted for new buildings, and when it is updated for existing buildings.
Defining accountability
Section 72 of the Building Safety Act 2022 (BSA) defines who the accountable person for a building is, but does not confirm which parts of the building they are directly responsible for.
The Regulations assign responsibility for duties based on the extent of land occupied by that person, or the area for which they have a repairing liability pursuant to a lease. The effect of this would be that the duties of an accountable person would apply only to the common parts, or residential units which are under their actual control.
Whilst the majority of respondents agreed with this proposal, one of the main concerns was around the principle of making building owners responsible for fire and structural safety duties over premises for which they do not necessarily have direct control. The Government confirmed in its response that this will not be the case. For example, the Government has confirmed that where flats are held on long leases, the accountable person will instead be responsible for ensuring that relevant information is provided to the resident, and for mitigating safety risks within the flat so far as they impact the remainder of the building. This will no doubt come as welcome relief for accountable persons.
Where there is more than one accountable person, duties will be assigned on the basis of their legal estate in possession or repairing obligation for that part of the building. The accountable persons will then be required to co-operate and work together to maintain the fire and structural safety of a building.
Further guidance will be issued to support stakeholders with the new Regulations before they come into force on 6 April, including guidance on how accountable persons can effectively manage the fire and structural safety for their part of a building.
The 'key building information' to be submitted and updated
The Regulations require the principal accountable person to provide the Building Safety Regulator ("the Regulator") with certain 'key information' about a higher risk building, which must be submitted within 28 days of the application to register the new unoccupied building.
Whilst the intention is for this information to be stored as part of the 'golden thread of information'; it represents technical data regarding each higher risk building which will help the Regulator understand the key characteristics of that building, and to assess safety risks in higher risk buildings across the country. It will extend to:
- the use of a building and details of the energy supply;
- details of the system material, insulation and percentage coverage for external walls and roof, together with types and materials of external features;
- details of the building frame material and structural information of a building;
- the fire standard that applies to the building as well as details of the evacuation strategy (e.g. stay put, simultaneous evacuation), fire and smoke control provisions and equipment within the building; and
- confirmation of the number of staircases within the building serving all floors.
This information will need to be updated within 28 days of the principal accountable person becoming aware of any relevant changes.
The Regulations anticipate that this key building information should be published to aid transparency in the industry. Whilst the Government's response did not address security concerns, the Government has confirmed that any publication should be accompanied by a clear explanation of the purpose and content of the data.
The Government's response confirms that key building information needs to be submitted as early as possible from April 2023 to enable the Regulator to scrutinise applications to register the 13,000 existing higher-risk buildings, and to ensure that the Regulator has accurate and timely information in order to prioritise assessments of those higher-risk buildings.
The responses received to the consultation were from a diverse range of stakeholders across the industry. Their largely positive response demonstrates broad support for these new Regulations, albeit we anticipate some key amendments to ensure fairness and proportionality in the extent of new duties being imposed on accountable persons.
The Regulations will now be debated by both Houses of Parliament in due course and, if approved, are expected to come into force on 6 April.
The Birketts View
There are around 13,000 existing buildings which are considered to be higher risk buildings, with an estimated 490 new buildings meeting the definition anticipated to be built each year.
The further guidance which the Government confirmed it will produce will be helpful for those who will assume the roles of accountable person or principal accountable person, and provide greater clarity on the scope and nature of the additional duties they will be responsible for.
With regard to new buildings, guidance will be required for contractors and developers, who will need to ensure that systems are put in place to ensure compliance with the new Regulations, and to enable accountable persons to fulfil their responsibilities under them.
In particular, parties should note the deadline of 1 October 2023 for registration of higher risk buildings. From this date it will be an offence to occupy a higher risk building which has not been registered. Principal accountable persons would be well advised to submit their applications and key information to the Regulator as early as possible from April 2023, to avoid financial penalties or even imprisonment.
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