Nov 25, 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 is set out in clause 30 of the Building Safety Bill and the draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2021 published alongside it.
Buildings are considered higher-risk buildings under the Bill if they meet both height and description criteria.
Buildings meet the height criteria to be higher-risk buildings if they:
- are at least 18 meters in height (measured from the ground to the floor of the highest occupied storey, ignoring any storeys consisting solely of plant or machinery), or
- have at least 7 storeys (ignoring any storeys below ground level).
The description criteria varies depending on the new duties created by the Bill. In summary:
- buildings meeting the height criteria and containing two or more residential units/dwellings will be subject to new duties throughout design, build, refurbishment and occupation.
- buildings meeting the height criteria and containing care home or hospital facilities will be subject to new duties throughout design, build and refurbishment, but are exempt from new duties through occupation.
Source: Building Safety Bill, as published in draft 20/07/2020 – Explanatory Notes, para 228.
The Impact Assessment accompanying the original draft Bill estimates that 13,000 existing buildings will fall within the scope of the Bill, 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 Bill presented to Parliament. 
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 persuaded Government to include care homes and hospitals within the scope of the Bill during the design, build and refurbishment stages.
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. Whilst the Government has stuck with the 18 meter threshold, the Bill does allow for this to be amended in future.
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.
 Building a Safer Future, Chapter 1, paragraph 1.3
The Bill provides a very wide potential scope for the new duties, allowing 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 with the draft Bill painted an example scenario where residential buildings containing two or more units of any height could be included in scope, or commercial office blocks, where they meet the height criteria. The Explanatory Notes alongside the Bill presented to Parliament painted the hypothetical scenario where a high risk of flooding could bring a single-story building within the scope and definition of a higher-risk building, should it be established that this presented an elevated risk to the safety of occupants.
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 then, at the direction of the Regulator, apply for a Building Assessment 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 Assessment 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.