The Building Safety Act 2022 (BSA 2022) introduces a rigorous new building safety regime for certain residential buildings, imposing more onerous requirements on those identified as “higher-risk buildings”. 1 October 2023 will bring this new regime into force.
30 September 2023 is the deadline for submitting the application to register any qualifying “higher-risk buildings” that are used for any residential purposes, including as part of a mixed-use regime.
With this deadline looming, we have prepared some FAQs to help you determine whether you need to take action.
1. What is an occupied “higher-risk building”?
A “higher-risk building” (HRB) is defined in Part 4 of the BSA 2022 (which applies to buildings which are in occupation) as a building in England that:
- is either at least 18 metres in height or at least seven storeys (excluding basements and independent sections which comply with certain requirements), and
- contains at least two residential units (where a residential unit is defined as a dwelling or any other unit of living accommodation).
The following categories are expressly excluded from the definition of an HRB:
- Care homes,
- Secure residential institutions (eg prisons),
- Hotels, and
- Military premises (eg military barracks and accommodation provided by the Ministry of Defence for military personnel).
The government’s detailed guidance on the criteria for an occupied HRB can be found here.
2. What if my building is partly used for one of the excluded purposes and only partly for residential use?
Mixed-use buildings still qualify as HRBs under Part 4 of the BSA 2022. This means that unless the building is entirely used as eg a hospital, and instead eg partly as a hospital and partly as boarding for university students, it will meet the criteria for use. However, you will still need to assess whether the building fits the remaining height and storey criteria.
3. I think I own an HRB that needs to be registered; what needs to be done and who needs to do it?
The HRB needs to be registered with the Building Safety Regulator, and the application must be submitted on or before 30 September 2023 by the “principal accountable person” (and please see Q.4 below regarding the definition of “principal accountable person”).
The registration can be done online (and please see further information on the process below at Q.5).
4. How do I know if I am the “principal accountable person”?
An “accountable person” is an organisation or individual which owns or has a legal obligation to repair any common parts of the building.
Where there is more than one accountable person, the “principal accountable person” (PAP) is the accountable person who owns or is legally obliged to repair relevant parts of the structure and exterior of the building. The PAP for the building may therefore be the freeholder, a landlord, a managing agent, or other person or organisation.
5. If I am the PAP, what do I need to do?
You will need to apply to register the building on or before 30 September 2023. The application must be submitted through the government portal here. The application costs £251 to submit.
In the application, you will be asked to provide detailed information about the HRB’s structure and fire safety protocols, including:
- The identity of the PAP and relevant contact details,
- The address of the HRB,
- The number of floors at or above ground level and the HRB’s height in metres,
- The number of residential units,
- The year the HRB was originally built. For those HRBs completed in 2023 or later, you are also required to include the name of the building control body that issued the completion certificate or final notice and the certificate or notice number (and you should take reasonable steps to provide this information if the building was completed between 1985-2022), and
- “Key building information” including (but not limited to):
- Evacuation strategies, including fire and smoke control equipment,
- Fire doors and staircases,
- Energy supplies, storage and generation,
- Type of materials used for external walls and structure and roof,
- The building’s use,
- Any building work since the HRB was originally built, and
- Connections to other buildings.
The “key building information” will be requested by the Building Safety Regulator after the initial application is submitted and must be provided by the PAP within 28 days from the date of the application. It is not currently clear whether the 30 September 2023 deadline applies to the provision of the “key building information” and we understand that this will be made clear in communications from the Building Safety Regulator once an application is submitted. We would recommend taking a cautious approach and ensuring that all the relevant “key building information” is collated at the same time as making the application, so that it can be provided on or before 30 September 2023.
The PAP is also responsible for notifying the Building Safety Regulator within 28 days of becoming aware of any change to any of the information provided.
The PAP can formally authorise in writing another person (such as a managing agent or legal representative) to make the registration. It is important to note that the PAP may not delegate its other responsibilities.
6. What if the PAP fails to apply to register by 30 September 2023?
Failure to comply will constitute a criminal offence by the PAP, with the risk of a fine, imprisonment or both.
7. The FAQs have dealt with existing occupied buildings. What about buildings under construction or where construction is going to commence soon?
The new regime under the BSA 2022 applies from and including 1 October 2023, and applies to both occupied buildings and those under construction.
From and including 1 October 2023, new buildings which fall within the regime and are “completed” after this date must be registered before the building is occupied.
Under the new regime, the Building Safety Regulator will be responsible for all regulatory decisions relating to the design and construction of HRBs prior to occupation. The definition for an HRB at the design and construction stage is set out in Part 3 of the BSA 2022 and is similar to the definition used for buildings in occupation, although care homes and hospitals must be included at this stage.
Building control approval must be obtained from the Building Safety Regulator before construction begins on an HRB.
There are separate transitional arrangements which may apply to HRBs under construction or where works have not commenced. In order to fall within the transitional arrangements, an initial notice needs to be given to the local authority (which is not rejected) or full plans submitted (which are not rejected) by 1 October 2023. To continue to operate under the previous regime, the relevant works to the HRB must be “sufficiently progressed” (ie the placement of permanent foundations must have commenced) by 6 April 2024. On completion of the project, the HRB will then be subject to the occupational requirements in the BSA 2022, as applicable.
8. Is there anything else the PAP needs to do after 1 October 2023?
The PAP will need to familiarise itself with the other obligations imposed on it under the regime. Once the HRB has been registered and occupied, there are a number of ongoing responsibilities that the PAP must undertake including (but not limited to):
- Applying for a building assessment certificate, if required,
- Displaying notices and certificates in the HRB,
- Continuing to assess and report on building safety risks,
- Taking all reasonable steps to prevent and reduce the severity of building safety risks,
- Maintaining up to date information on the HRB, and
- Managing residents’ requests for information and complaints.
9. What should I be doing now?
Property owners should:
- Review their portfolios to assess whether they include any HRBs, and
- Where they do hold an HRB:
- Identify the accountable person(s) and the PAP,
- Determine who will submit the application,
- Collate the necessary information, and
- Ensure existing HRBs are registered on or before 30 September 2023.
10. Where can I find out more about the BSA 2022 and its implications?
Please contact us for detailed advice in relation to your properties.
The government guidance on applying to register an HRB can be found here. FAQs produced by RICS can be found here.
You can also refer to this article by our Residential and Secured Lending team.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2023
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