UK: Hotels And Building Safety – What Do I Need To Know?

As is now well-documented, the Building Safety Act 2022 (BSA) became law in April 2022, making wide-ranging changes to the building safety regime and implementing many of the recommendations set out in Dame Judith Hackitt's 2018 Independent Review of Building Regulations and Fire Safety (the Hackitt Report).

The majority of the recommendations set out in the Hackitt Report related to high-rise, multi-occupancy residential buildings. However, the Hackitt Report also recognised that there are further classes of buildings to which specific recommendations should equally apply - one of which being "institutional residential buildings",¹ which include hotels.

The Hackitt Report extended a number of its recommendations to institutional residential buildings, calling upon the Government, amongst other things, to "consider also applying Gateway Points 2 and 3 to [.] institutional residential buildings." (see Recommendation 2.8).

However - whilst the secondary legislation implementing the more stringent building control regime for design and construction (which will include Gateways 2 and 3) is still awaited - the definition of "higher-risk buildings" (HRBs) which will be governed by this regime has now been confirmed. As described further below, this definition - at present - excludes hotels.

What do hotel owners, developers and operators need to have in mind, then, when assessing their fire and building safety obligations in respect of existing operational hotels, and new hotel builds? We examine below the impact of the BSA on hotels as well as other fire safety legislation that hotel owners, operators and developers will need to be aware of.

Are hotels "higher-risk buildings"?

As we reported in our recent insight (Building Safety Act: What are higher-risk buildings?), the definition of "higher-risk buildings" to which the new regime will apply has recently been confirmed in England, and the Welsh Government has also put forward its proposed definition.

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 confirm that hotels - together with secure residential institutions and military accommodation - are excluded from the definition of HRBs in England. This is the case both in respect of the design and construction phase, and the occupation phase.

In Wales, the Government has set out its proposed definition of HRBs in a consultation and draft regulations which are expected to come into force later in 2023. This definition will, however, only apply to the design and construction phase and not to the occupation phase. Again, hotels are excluded.

Accordingly, whilst this may of course change in the future, new hotels (irrespective of height) are not currently subject to the more stringent regulatory regime, to be overseen by the Health and Safety Executive as Building Safety Regulator (BSR), which is expected to come into force later this year.

New-build hotels and the extension of the combustible materials ban

As we reported in this previous insight (Combustible materials ban expanded to include hotels - what does this mean for you?), however, the introduction of The Building etc. (Amendment) (England) Regulations 2022 (the 2022 Regulations), which came into force on 1 December 2022, marks a significant change for new hotel builds going forward.

The 2022 Regulations extend the ban on combustible materials which had been introduced by the Building (Amendment) Regulations 2018 (the 2018 Regulations). The 2018 Regulations amended the Building Regulations 2010 by, in effect, banning the use of combustible materials in and on the external walls of certain buildings and in specified attachments to the external walls in "relevant buildings".

Whilst this initially did not apply to hotels, the 2022 Regulations amend the definition of "relevant building" to bring hotels, as well as hostels and boarding houses, within the scope of the Combustible Materials Ban. As a result, hotels over 18 metres will have to ensure that their external walls meet the same performance requirements (being A2-s1, d0 or better) as the higher-risk buildings already covered by the ban.

This will, however, only apply to new hotels and existing hotels where building work or refurbishment is taking place on external walls. Applicable building works are those defined in 3(1) of the Building Regulations 2010, including erections, extensions and material alterations of existing buildings. Recladding works are very likely to fall within this definition.

What if my planned hotel build is already underway?

Where parties deposited a building notice, initial notice, or full plans with a local authority before 1 December 2022 and the proposed building work is started within six months from that date, the project will be covered by the transitional period and will not be included in the category of hotels which need to adhere to the higher performance standards. However, as noted below, and in light of the possibility that the rules may be further tightened in future, it would be prudent to adhere to the higher performance standards for all new hotel builds currently underway.

What about operational hotels?

As we noted in our recent insight (Combustible materials ban expanded to include hotels - what does this mean for you?), the 2022 Regulations do not retrospectively require remedial work to be carried out in buildings where building works are not already underway. Whilst the position may change in future, as things stand this leaves a significant number of existing hotels in limbo, and may leave landlords and tenants of operational hotel buildings wondering whether they are required to, or how they can take action to remediate unsafe cladding.

Can tenants of high-rise hotel premises with potentially unsafe cladding seek remediation orders against landlords?

The BSA has also introduced new powers to seek remediation orders against landlords in respect of the remediation of defects that cause a building safety risk, as well remediation contribution orders in respect of the funding of those works. However, such orders are only available in respect of "relevant buildings" - which are defined in Part 5 of the BSA as self-contained buildings (or parts thereof) in England containing at least two dwellings and at least 11 metres high, or with at least five storeys.

In light of this definition, the option to seek a remediation order or remediation contribution order is not presently available to leaseholders of operational hotels buildings with unsafe cladding.

Are there other fire safety obligations which apply to landlords and tenants of operational hotels?

In the case of a hotel, where the landlord may own the building but the tenant operating the hotel holds a lease, which may or may not include the demise of the exterior, who does the responsibility fall on to ensure fire safety?

The Regulatory Reform (Fire Safety) Order 2005 imposes numerous obligations on the "responsible person" of a building, including the duty to take general fire precautions and to make a suitable and sufficient assessment of risks to which relevant persons are exposed. "Responsible person" is broadly defined as the person who has control of the premises as occupier or otherwise - meaning it could arguably be either the landlord or the tenant of a building being operated as a hotel.

Further, and importantly, both landlords and tenant operators will have overarching duties under sections 2 and 3 of the Health & Safety at Work Act 1974 to ensure, so far as is reasonably practicable, that their employees and any non-employees affected by what they do are not exposed to risk to their health and safety. Section 4(2) of the Health & Safety at Work Act 1974 also imposes a duty on each person with control of the premises to any extent, to take reasonable measures to ensure that the premises are safe and without risks to health. This means that any person with contractual or tenancy-related obligations in relation to maintenance and repair, or any means of access to or egress from the premises, will be treated as persons who have control of those matters. Breach of this overarching duty can be a criminal offence subject to an unlimited, uninsured fine.

Erring on the side of caution, both parties may benefit from finding an agreeable compromise splitting costs and responsibilities of external wall surveys and possible remediation works, in order to avoid the uncertainty of having a court decide where responsibility lies.

As an existing hotel not within the scope of the 2022 Regulations, deciding whether or not to carry out works at the moment can arguably come down to a commercial decision to avoid reputational damage.

While not a legal point, there are potential negative reputational risks that may come with any refusal to cooperate with efforts to minimise the risk. Although placed in an ambivalent position, in an attempt to avoid industry scrutiny, responsible corporates should consider undertaking risk assessments in accordance with PAS 9980 (which does not officially extend to hotels at present but may be amended to do so in light of the 2022 Regulations), and remediating external walls in light of any fire risk concerns, given the risks to staff and guests in their hotels.

Footnote

1. "Institutional residential buildings" are defined in the report as "institutions and other buildings used as living accommodation where people sleep including hospitals, care homes, hotels, prisons, Halls of Residence and boarding schools."

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