April 2023: Building Safety Update

Summary

This update looks at:

(i) further sections of the Building Safety Act 2022 and related secondary legislation that are coming into force, primarily relating to (i) the definitions of "higher risk" building; and (ii) the registration of occupied higher risk buildings. 

(ii) Recent indications by the Government that they are looking to focus on manufacturer contributions to the building safety crisis.

New BSA sections and regulations coming into force

The Government has recently published four important new regulations relating to the BSA:

(i) The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023 (coming into force either 1 April 2023, 6 April 2023 or 1 October 2023)

(ii) The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (coming into force 6 April 2023)

(iii) The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023; (coming into force 6 April 2023)

(iv) The (still draft as at 3 April 2023) Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023

These regulations are relevant to those developing, designing and constructing buildings and to those entities who qualify as either an "accountable person" or "principal accountable person" for the purposes of the "occupied" higher-risk buildings regime under Part 4 of the BSA.  (See s72 and s73 BSA for detail of these definitions, but in essence an "accountable person" is a person who holds a legal estate in possession in any part of the common parts of a relevant higher-risk building, or if they do not hold a legal estate, are under a relevant repairing obligation in relation to any part of the common parts).

(i) The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023

These commencement regulations will bring into force a significant number of sections in the BSA. These include:

• Sections primarily relating to the Building Safety Regulator's function and sections which allow the Government to make regulations on various matters (coming into force 1 April) (reg 2).
• On 6 April 2023, bringing into force (reg 3):
  • sections relating to definitions of occupied higher risk building and accountable persons etc (s71-75 BSA);
  • certain sections relating to the registration of occupied higher risk buildings (s78(1),(3) (4) and (5) BSA) and regulations relating to the provision of information to the Regulator regarding occupied higher risk buildings (s89 BSA);
  • various sections relating to the Regulator's powers and duties;
  • the Government's power to make regulations under the Building Act 1984, including in relation to: (a) s33 to 35 BSA, which amend Schedule 1 of the Building Act 1984, and empower the Government to make Building Regulations for various purposes, including including in relation to the dutyholder and competency requirements, (b) s38 and 39 BSA (relating to compliance and stop notices and the updated criminal offence of breaching building regulations) for the purpose of making regulations about those;
  • various other sections that will allow the Government to implement changes to the building control regime;
  • in part, sections that amend the landlord & tenant Act 1983 relating to implied terms in leases and recovery of building safety related costs (s112 BSA); and
  • sections relating to New Home Warranties for the purpose of making regulations about that (s144 and 145).

(ii) The Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations

This regulation sets out the definitions of "higher risk" building in England for (i) the design and construction phase (what will be "Gateways 2 and 3" under the new building control regime); and (ii) "occupied higher-risk" buildings regime under part 4 of the BSA. 

It is important to note that both (i) the definition of what is a "building", and (ii) what is a "higher risk" building, is different for (and sometimes within) in each regime.

First, regulation 4 sets out that the "building" is defined differently depending upon whether it is (i) a new construction under the Gateways regime, or (ii) an existing building (that is either to be refurbished under the new "Gateways" regime, or falls under the "in occupation" regime): 

• For new builds, "building" will mean the whole construction - this may be one structure, or a set of different structures joined together (e.g. a complex development spanning a large area). This is to allow the BSR to consider the entire structure or set of structures to be built.
• For refurbishment work / the "in-occupation" regime, "building" may be defined more narrowly in some circumstances (i.e. if certain criteria are met, sections of a wider building may be defined as their own separate building, with the relevant regime applying only to that part).  

Once the relevant "building" has been ascertained, the regulation then sets out when it will be "higher risk", as follows:

• "Higher-risk" buildings for the "Gateways" regime: 18m/7 storeys or more and contain at least 2 residential units, and/or be a hospital or care home. ("Residential units" is defined as a "dwelling; or any other unit of living accommodation".Hospital and care home are also specifically defined.)
• "Higher-risk" buildings for the "in occupation" regime: 18m/7 storeys or more and contain at least 2 residential units. Hospitals and care homes are excluded for this purpose.

(Secure residential institutions, hotels and certain military accommodation are excluded from both definitions).

The regulation also sets out how the "height" is to be measured in both cases.  This is to be from ground level to the top of the floor surface of the top storey (ignoring any storey that is solely roof-top machinery or plant). There is also a process for determining from where measurement is to be taken at ground level, and for considering when "gallery" levels are to be factored in.

Note that Wales is considering their approach: https://www.gov.wales/building-safety-higher-risk-buildings.

(iii) The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023

The BSA requires the "principal accountable person" for an "occupied" higher-risk building (see definitions above) to register the building with the BSR.  It will be an offence (s.77 BSA) for the building to be occupied but not registered: the explanatory note to these regulations makes it clear that s77 will not come into force until 1 October 2023, to allow for a period of voluntary registration, and makes it clear that applications for registration can be made from 6 April 2023.

These regulations relate to the registration of higher-risk buildings in occupation have also recently been passed and will come into force on 6 April 2023, at the same time as s78(1), (3) (4) and (5) of the BSA that relate to the obligations on the principal accountable person to register the building.

The explanatory note to these regulations makes it clear that s77 will not come into force until 1 October 2023, to allow for a period of voluntary registration, and makes it clear that applications for registration can be made from 6 April 2023.

The regulations set out in detail the provisions that must be followed by the principal accountable person (see s73 of the BSA) in relation to the registration process regime (and how decisions made by the regulator about registration may be reviewed).  Among other things under regulations 10 to 19 certain information and documentation has to be provided along with the application to register in relation to (i) the identity of the accountable persons and principal accountable persons, (ii) a description of the building; and (iii) details about the building control certificates for the building.  Because the occupied higher-risk buildings regime applies to both existing (and in future new) buildings, transitional arrangements have been provided at regulations 17 to 19 in relation to the information that has to be submitted about building control, which will differ depending upon when the building first became a "higher-risk" building.

(iv) The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023

Duties on "accountable persons" (Part 4 of the BSA) will include the provision of key building safety information to the BSR (BSA s.89). Draft Regulations setting out the "key building" information requirements have been published, and we anticipate that these will shortly be made, having been considered in Grand Committee on 14 March with a motion to approve agreed on 20 March 2023.

The draft regulations presently provide that the "key building information" must be submitted within 28 days of the (principal) accountable person submitting an application for registration of the higher-risk building with the BSR.  As noted above, registrations of buildings will be able to voluntarily submitted from 6 April 2023. 

This 28-day timescale appeared to cause concern during a debate in Parliament on 22 February 2023, but the legislators have made it clear that a short timescale is important "so that the regulator can prioritise the call-in of building assessment certificates."  It is also noted that the explanatory note to the "Registration" regulations discussed above states that the Regulator will be able to "enforce" the 28-day requirement for key building information from 1 October 2023. Further clarity may be provided once the final form of the Key Building Information Regulations are issued.

Under the draft Regulation, "Key building information" will include:

• the principal use and any subordinate use of the building(s) (the regulation provides for various categories of use);
• descriptions of materials and insulation used in the composition of the external wall and the roof, and of any fixtures to the external wall;
• with regard to the building's structure, the main material used and the type of structural design use to comply with Part A, Schedule 1 Building Regulations;
• the number of storeys below ground level; and
• information relating to staircases; energy storage and supply; evacuation strategy and fire and smoke control equipment and location.  

The consultation on these Regulations made clear that the "key building information" to be provided has a distinct and different purpose and objective to the "Golden thread" information. The key building information is to furnish the Regulator with data, to identify trends and similar, on higher-risk buildings. The golden thread is intended to support compliance with building regulations and safe management of buildings during occupation.  Principal accountable persons of occupied "higher-risk" buildings will therefore need to be ready to obtain and supply the key building information to the Regulator in due course.  Those who developed, designed and constructed such buildings should also now be prepared for requests to be made from them in relation to such information. 

Government focus on manufacturers

Michael Gove, as Secretary of State for the DLUHC, has recently written to Arconic and Kingspan (the manufacturers of products used on Grenfell) to express disappointment at their lack of engagement in relation to the industry-wide response to the building safety crisis to date and to invite them to meet.  He emphasised that the Government expects a "comprehensive package of support from construction product manufacturers" and indicated that there could be "commercial consequences" should companies continue not to engage.

This may signal an increased focus by the Government on encouraging contributions from the construction products sector, and we will keep this under review.