When the Grenfell Tower tragedy occurred in June 2017 it was immediately apparent that the building safety regulations in the UK, particularly when applied to the kind of tower blocks regarded as high-risk buildings, were not fit for purpose.
The initial response saw the government establish an independent review of the building regulations and fire safety, led by Dame Judith Hackett. In May 2018 this led to the publication of ‘Building a Safer Future, Independent Review of Building Regulations and Fire Safety: Final Report’, which called for a ‘universal shift in culture’ and set out more than 50 recommendations for change.
Amongst the extensive problems highlighted in the report was the inadequacy of audit trails of information throughout the life cycle of a building, leading to a lack of reassurance that buildings that were initially built to be safe, had continued to be so.
As a direct result, the government announced the Building Safety Act 2022 (BSA), which received royal assent in April 2022. Passed as ‘enabling’ legislation, the Act contained many provisions which didn’t come into force at the time but which have been introduced gradually in the period since (in tandem with a series of consultations).
On 6th April 2023, 44 sections of the Act and three new regulations come into force, including the Higher-Risk Buildings (Key Building Information etc) (England) Regulations 2023 (SI 2023/396). In this article, we’ll be examining the definition of a ‘high-risk building’ as set out in the regulations and the responsibilities now placed on what is referred to as the Principal Accountable Person (‘PAP’).
Definition of ‘High Risk Buildings’
In simple terms, a high-risk building is defined as one which is at least 18 metres high or has at least 7 storeys and contains at least 2 residential units.
Registration
The first and most important aspect of the new regulations is that from 6th April 2023 all occupied high-risk buildings are required to be listed on a register set up by the Buildings Safety Regulator from 6th April 2023 onward. The deadline for registration is 1st October 2023.
Estimates for the number of existing buildings impacted by this new regulation range from 12,500 to upward of 13,000, and any failure to register will mean committing an offence which could trigger investigation and prosecution, with possible ramifications extending to an unlimited fine and/or 2 years imprisonment.
If you are the ‘PAP’ then you are responsible for registering a high-risk building. You should therefore act as quickly as possible, as it may take some time to gather the information which needs to be provided when registering a building.
Who is the ‘PAP’?
The ‘PAP’ as set out at S.73 of the 2022 Act is defined as the owner of the building, which is generally the person(s) who holds a legal estate in possession of the relevant parts of the structure and the exterior of the building.
A ‘PAP’ could also be a person without legal estate in any part of the building but who is under a repairing obligation in relation to the relevant parts of the structure and the exterior of the building. his could include landlords who remain responsible for the external structure of the building.
The ‘PAP’ has responsibilities that extend beyond registering the building for the first time; they must also provide ‘key building information’ to the Buildings Safety Regulator in relation to the high-risk building.
Key Building Information
The key building information needs to be submitted within 28 days of the initial registration taking place. In addition, the ‘PAP’ has a duty to notify the Buildings Safety Regulator regarding any change in the key building information submitted within 28 days of becoming aware of such change.
The initial information required upon application includes;
- The details of the ‘PAP’, including their contact details
- The type of any organisation which employs the ‘PAP’
- Details of any person making the initial application on behalf of the ‘PAP’
- A single point of contact if the ‘PAP’ is an organisation rather than an individual
- A description of the building
- Details of the building control framework in place
- Any building certificate which is applicable
The ‘key building information’ should include the following:
- The name, address and postcode of the building
- The height of the building in metres
- The number of floors in the building
- The ‘PAP’
- Any other Accountable Person(s)
- The parts of the building for which the Accountable Persons are accountable
- The year in which the building was fully constructed
- If the building is a new-build, confirmation of the completion certificate
If an existing building has not been registered by 1st October 2023 – the end of the initial six month period – it will be an offence for the ‘PAP’ to allow that building to be occupied. This could have significant commercial consequences.
The registration process will take place via a portal set up by the Buildings Safety Regulator. Once it has been compiled, the ‘Register of Higher Risk Buildings’ will be published in order to ensure transparency and encourage accountability on the part of building owners and managers.
At the time of writing, the fee charged for registering a high-risk building is £251.
Other types of buildings
In the case of hospitals or care homes, the status of the building in terms of construction will have a bearing on whether it needs to be registered.
If the building is still in the design and construction phase, and meets the criteria set out above, then it will be included in the definition of a high-risk building. Once a building of this type is occupied, however, it is excluded from the requirement to be registered as it is then covered by the regulations contained within the amended Regulatory Reform (Fire Safety) Order 2005 (Order). The same applies to buildings such as prisons and other secure residential institutions, hotels and military barracks.
Other Considerations
Although the definition of a high-risk building is fairly straightforward, and in many cases, it will be clear and obvious that a building needs to be registered, there are some complicating factors that need to be taken into account.
- Method of Measurement: The height of the building, for example, needs to be measured from the ground level on the lowest side of the building to the top of the surface of the floor on the highest occupied storey of the building, rather than being measured to the height of the roof.
- Plant and Machinery: The question of plant and machinery also needs to be considered, since the definition of a high-risk building includes buildings with individual rooms which contain plant or machinery. However, in cases where an entire storey contains only plant or machinery, then that storey is not included in the height calculation.
- Gallery Floors: Further complications arise if the building in question features a gallery floor. According to the regulations any storey which consists of a gallery floor (basically a raised floor or platform which is open to the room or space into which it projects and which is at least 1.8 metres above the surface of the main floor) doesn’t need to be counted as a storey in its own right, providing the floor area of the gallery is less than 50% of the largest storey either above or below.
As the examples above demonstrate, the complexity of the regulations and the possible ramifications of failing to comply mean that anyone who thinks they may be the person with responsibility for registering a building, or who is uncertain whether the building in question needs to be registered as a high-risk building, should take proactive steps and seek professional advice as soon as they can.
Key Takeaways
- Check whether you are the ‘PAP’
- Is the building you are responsible for a “high-risk building” and does it need to be registered?
- The deadline for registering an existing high-risk building is 1 October 2023. After this date, any new-builds which meet the criteria for a high-risk building need to be registered before being occupied, and developers will need to apply to Buildings Safety Regulator for approval before commencing work on any high-risk building.
- From April 2024 onward the Buildings Safety Regulator will start calling high-risk buildings in for assessment, and issuing Building Assessment Certificates.
