Changes to Higher-Risk Buildings Regulations

What defines a higher-risk building?

The Higher-Risk Building Regulations 2023 define a higher-risk building during design and construction as “a building that is at least 18m in height or has at least 7 storeys and contains at least two residential units; or is a care home; or is a hospital“.

As for defining a higher-risk building during occupation, this is defined as “a building that is at least 18m in height or has at least 7 storeys and contains at least two residential units”. This excludes buildings that comprise entirely of occupied care homes, hospitals, secure residential institutions, hotels, military barracks and living accommodation for military personnel.

Further to the above definitions, the reference to “18m in height” will be based on the height from the 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 only contains machine or plant is excluded from consideration.

The Changes

The Higher-Risk Buildings Regulations 2023, sets out the key information that an accountable person (“AP”) or (if there is more than one AP) the principal accountable person (“PAP”) will have to provide to the Building Safety Regulator, in order to fulfil the requirements under the Building Safety Act 2022 (“the 2022 Act”).

Under section 72(1) of the 2022 Act, an AP can be a person who:

• Holds a legal estate in possession in any part of the common parts (meaning the structure and exterior of the building and other common parts of the buildings); or
• Does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts.

The exact position will depend on what the leases for the property say about repair and who is responsible for repair across all of the leases issues at the Property.

Under section 73 of the 2022 Act, the PAP for a higher-risk building is a person who:

• Where there is only one AP, that person
• If there’s more than one AP, either a person who:
  • Holds a legal estate in possession in the relevant parts of the structure and exterior of the building; or
  • Does not hold a legal estate in any part of the building but is under a relevant repairing obligation in relation to the relevant parts of the structure and exterior of the building.

In practice, an AP or PAP can be the freehold owner, the landlord or the management company. There may be multiple APs and it is possible that more than one entity or person could fall within the definition of PAP. If so, then there will be a question as to which entity or person should fulfil the role of the PAP. If the parties cannot decide between themselves who should take on that role, an application can be made to the First Tier Tribunal for an order. The Act acknowledges that there may be more than one candidate and provides that the PAP shall be who “the tribunal considers appropriate”.

The AP or PAP must also:

• Provide Key Building information for each higher-risk building, for which they are the AP or PAP, to the Building Safety Regulator (“BSR”);
• Submit that Key Building Information in electronic form within 28 days of the AP or PAP having submitted an application for registration of that higher-risk building; and
• Notify the BSR of any change to the Key Building Information within 28 days of the AP or PAP becoming aware of the change.

As per the HSE’s announcement in February 2023, the new Building Safety Register (“the Register”) was announced and had opened in April 2023. The Register has allowed for a period of voluntary registration, whereby the registration of any occupied higher-risk buildings must be completed before October 2023, in order to avoid committing an offence.

Under section 77 of the 2022 Act, the PAP will be held liable if the registration of any occupied higher-risk buildings has not be dealt with before October 2023.

As the BSR becomes the new building control authority for high rise residential buildings, from 1^st October 2023, developers must apply to the BSR for building control approval before commencing work on any high rise residential buildings.

The new changes are expected to apply to around 12,500 existing buildings.

The next steps

We recommend clients and owners of residential buildings, including those with management responsibilities to consider and note:

• Whether the building is a higher-risk building; and
• Who will be an AP and who the PAP is or ought to be if more than one person is identified .

Once the above points have been considered and identified, details of the AP, APs or PAP and the building itself, will need to be registered through the online platform (where the fee is currently £251) before October 2023, to avoid committing an offence.

For buildings completed prior to 6 April 2023, to understand that details of the Buildings Regulations completion certificate or final certificate, will also need to be provided as a part of the registration application.