May 27, 2021
The following commentary is based on the draft Building Safety Bill. It is therefore subject to change and provided for information only.
The most significant of the new duties created by the Building Safety Bill apply to what are termed ‘higher-risk’ buildings.
The initial scope and definition of a higher-risk building has yet to be formally published, but the Explanatory Notes accompanying the draft Bill set out the initial scope envisaged by Government.
Higher-risk buildings will initially be defined as residential buildings that satisfy one or more of the following height criteria:
• The floor surface of top occupied storey is 18 meters or more above ground level (ignoring any floors consisting solely of plant/machinery)
• The building contains more than 6 storeys (ignoring any storeys below ground level)
The building is considered residential if:
• It contains two or more dwellings (i.e. house, flat, apartments)
• It contains two or more rooms for residential purposes (e.g. supported accommodation), or
• Is student accommodation
The Explanatory Note does specify some exclusions:
• Residential care homes
• Secure residential accommodation (e.g. prisons and detention centres)
• Temporary accommodation (e.g. hotels and hospitals)
Source: Building Safety Bill, as published in draft 20/07/2020 – Explanatory Notes, para 228.
The Impact Assessment accompanying the draft Bill estimates that 13,000 existing buildings will fall within the scope of this initial definition, with a further 400-500 new buildings meeting the definition being constructed each year.
In many respects, it already has. In her review of building safety, Dame Judith Hackitt recommended that residential buildings of 10 or more storeys be included in scope, which has been reduced to 6 storeys in the draft Bill.
In pre-legislative scrutiny by the Housing, Communities and Local Government Commons Select Committee, there was strong support for the scope to take account of the vulnerability of residents and their ability to evacuate. This may mean care homes and other buildings housing vulnerable people are included in the scope of higher-risk buildings at some point in the future, irrespective of height.
In addition, several contributions to pre-legislative scrutiny suggested a lower height threshold of 11 meters. This would align with the May 2020 changes to Approved Document B, where the trigger height for several additional fire safety provisions has been reduced to 11 meters.
The changes and contributions suggest the direction of travel is for the scope of buildings included in the new regime to increase over time. Would-be Accountable Persons for residential buildings outside the above definition, but between 11 and 18 meters in height, or housing vulnerable people, may wish to appraise themselves of the new duties and consider what preparations to take.
The draft legislation provides a very wide potential scope for the new duties. Section 35(3) allows for any permanent or temporary structure to be included and even allows for vessels and moving objects to be included. Perhaps more realistically, the Explanatory Notes paints an example scenario where residential buildings containing two or more units of any height could be included in scope or commercial office blocks, perhaps where they meet the height criteria.
Maintaining close scrutiny of the emerging detail is important not only for any organisation who would-be an Accountable Person for a higher-risk building under the current anticipated definition, but also any building that is close to the height criteria or houses vulnerable people.
The Accountable Person for a higher-risk building must register the building with the new Building Safety Regulator and apply for a Building Assurance Certificate. To do this, they will need to prepare a building safety case report that satisfies the regulator that the Accountable Person is meeting their duties under the Bill.
Accountable Persons who fail to register a higher-risk building and secure a Building Assurance Certificate whilst the building is occupied may face fines and imprisonment of up to two years upon prosecution and conviction. Once registered, the Accountable Person has ongoing duties to around the management of the building working with an appointed Building Safety Manager.