Following the Grenfell tragedy and the publication of the Hackitt Report, new legislation was introduced with a focus on fire safety.
One of the key pieces of legislation is the Building Safety Act 2022 (BSA), primarily enacted to improve the design, construction, and management of all buildings and in particular ensure the safety of higher-risk buildings.
Two key challenges of carrying out Airspace Developments on buildings of 18m+ are:
- The interpretation of the Fire Safety Regulations is that sprinklers should be fitted in all existing flats in the building; and
- To install sprinklers in the existing leases in the building the landlord would have to have reserved sufficient rights in the lease to access the flats and carry out those works. The existence or otherwise of those rights changes on a building-by-building basis.
These challenges produce a drag on the efficacy of individual developments and Airspace Development as a housing solution and leaves considerable risk with the Airspace Developers and building owners who may not be able to satisfy the Fire Safety Regulations due to insufficient rights being reserved out of existing leases.
What is a Higher-Risk Building (HRB)?
Section 65 of the BSA defines an HRB as a building in England that is at least 18 metres in height or has at least 7 storeys and, in each case, contains at least 2 residential units. Regulation 8 of the HRB Regulations 2023 expressly excludes from this definition:
- care homes
- hospitals
- secure residential institutions
- hotels and
- military barracks.
If the building satisfies the criteria the 2 key implications of the BSA are:
- How building safety risks are to be managed; and
- How the cost of carrying out build safety remediation works can be recovered.
Part 4 of the BSA deals with the management of “building safety risk” for occupied HRBs. S.71 provides that an HRB is “occupied” if there are residents in more than one residential unit in the building.
Implications of Part 4
Accountable Person
The “accountable person” is the person responsible for “building safety risk” once the HRB is occupied. It may be an individual, partnership or corporate body and may be:
- the person who holds the legal estate in possession in any common parts of the building and/or
- the person who has a repairing obligation in relation to the common parts (which may be a Management Company).
There may be more than one “accountable person” in which case the “principal accountable person” is likely to be the person who holds the legal estate in possession in the relevant parts of the structure and exterior of the building.
“Building Safety Risk”
Section 62 of the BSA defines “building safety risk” as a risk to the safety of people in or about a building arising from:
- the spread of fire
- structural failure
- any other prescribed matter (which permits the Building Safety Regulator (BSR) to recommend that the definition be extended to include a matter which has the potential to cause a major incident, i.e. would result in a significant number of deaths or serious injury to a significant number of people)
Assessing Building Safety Risk (s.83 BSA)
Each accountable person is responsible for assessing building safety risks for the part(s) of the building they are responsible for. This is an on-going duty. Assessments must be caried out:
- as soon as practicable after the building becomes occupied
- at regular intervals
- at any time when the Accountable Person has reason to believe the current assessment is no longer valid
- at the direction of the Building Safety Regulator.
The process for assessing risk requires the Accountable Person to:
- identify hazards in their building
- assessing who could be harmed by the hazards
- assessing whether the hazards could give rise to a “major incident” and evaluating possible the consequences
- deciding how to lower the risk of a major incident to an acceptable level
- determining the measures required to mitigate the risk of harm to residents of a major incident occurred
The principal accountable person must also set up:
- a mandatory occurrence reporting system under which certain occurrences must be reported to the BSR (s.87 BSA), and
- a system for resident engagement, e.g. informing residents of decisions relating to the management of the building and consultations regarding those decisions (s.91 BSA)
Managing Building Safety Risk (s.84 BSA)
Each accountable person must promptly take all reasonable steps to:
- prevent a building safety risk from materialising
- take proportionate measure to address, reduce, mitigate and control building safety risks and
- reduce the severity of any incident resulting from such a risk.
Safety Case Reports (s.85 BSA)
The principal accountable person is also required to prepare a Safety Case Report which will contain the building safety risk assessment(s) (carried out under s.83, including those carried out by any other accountable person)) together with the steps taken under s.84 to manage the identified risks.
The Safety Case Report should be updated after each assessment under s.83 (with a copy provided to the BSR if requested).
The Safety Case Report is the primary evidence the BSR will rely on to ensure the Accountable Persons are fulfilling their duties.
Access to the Premises (s.97)
An Accountable Person can request access to flats within an HRB for the purposes of:
- carrying out a building safety risk assessment
- managing building safety risk (which may include the carrying out of necessary remedial works)
- assessing whether a resident is in breach of its duties (residents must not act in a way which creates a significant risk of a building safety risk, must not interfere with safety equipment, and must comply with a request to provide information required by the accountable person)
The request must be:
- made in writing
- set out the purpose for which it is made
- explain why entry is necessary
- request access to the premises at a reasonable time and
- must be made at least 48 hours before the time of entry requested
If entry is refused, the Accountable Person may make an application to the county court for access.
Enforcement by the Building Safety Regulator
The BSR can issue a compliance notice to an accountable person where they are contravening or appear likely to have contravened a requirement under Part 4. The notice will specify the steps which are required to remedy the contravention within a stated time
The BSR can also appoint a Special Measures Manager to carry out the functions of an accountable person.
Application to Airspace Development
It’s becoming increasingly apparent that, in HRBs, the interpretation of the Fire Regulations is moving towards requiring sprinklers in each residential unit. Where a Developer or Owner is undertaking an airspace development on an HRB, or where the airspace development will mean the existing building becomes an HRB, it’s likely that sprinklers will need to be retrofitted into the existing residential units in the building to satisfy Fire Regulations requirements.
This has posed an increasing challenge to Airspace Developers and Building Owners as, traditionally, access to tenants’ flats to install fire mitigation measures, including sprinklers, would require the requisite rights to be reserved to the landlord to take access and carry out works.
However, the access rights under s.97 of the Building Safety Act ostensibly solve this problem in HRBs providing the works are “reasonable” and “proportionate”. In short:
s.97 permits a request for access for the purpose of “facilitating the performance of a duty under s.83 or s.84.
S.84 includes taking “reasonable steps” to:
- prevent a building safety risk materialising; or
- reduce the severity of any incident resulting from a building safety risk.
s.84 specifically states: “Those steps may in particular involve the accountable person carrying out works to the part of the building for which they are responsible”
The steps must be taken in accordance with the “prescribed principles” (intended to form a best practice approach to risk management) i.e.
- avoiding building safety risks; and
- introducing proportionate measures to address, reduce, mitigate and control building safety risks.
Therefore, if sprinklers are required by the relevant Building Regulations Approved Documents and/or other applicable regulations, then this is likely to be “reasonable” and “proportionate”.
This should provide some considerable comfort to Airspace Developers and building owners carrying out Airspace Developments on HRBs (or that will become HRBs due to the development) as it will reduce both the time and cost of interpreting existing leases in a building and add considerable certainty that if sprinklers do need to be installed in flats in HRBs, the rights to take access and do the works exist in statute.
This research was also conducted in collaboration with Wendy Gyaben, Planning and Environmental Paralegal, whose significant contributions greatly enhanced this article.
