Defining higher-risk buildings and what it means for building owners under the Building Safety Act

The Building Safety Act 2022 has introduced new measures that apply to all buildings, but the most significant measures apply to ‘higher-risk buildings.’

A higher-risk building is defined as a building in England that:

  • is at least 18m in height or has at least 7 storeys; and
  • contains at least 2 residential units.

A ‘residential unit’ has a broad meaning, defined as a ‘dwelling’ or any other ‘unit of living accommodation’ which includes student accommodation and other temporary accommodation with basic amenities. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 indicate that, during the construction phase,  the definition of higher-risk building also includes care homes and hospitals at least 18m in height. However, they are excluded from the definition when they become occupied.

Government has excluded hotels, prisons and accommodation for military personnel from the definition of Higher Risk Buildings, explaining:

“We have excluded hotels and other temporary leisure establishments, as well as secure residential institutions like prisons. In occupation these buildings are also already regulated by the Fire Safety Order, and generally, these buildings are staffed 24/7, have multiple routes of escape, signage and emergency lighting to assist evacuation and have a higher level of detection and alarm systems than residential buildings.”

This does not mean that construction projects of this nature should be considered immune to change under the Building Safety Act. While hotels may not need to go through the High Risker Building Gateways, they are likely to be subject to more exacting compliance requirements. The consultation response from Government states:

“All building work must meet building regulations requirements. Some elements of the new design and construction regime will also apply to all buildings. There will be dutyholder requirements on all those involved in the procurement, design and construction of buildings intended to proportionately address risks for all building work in the design and construction phase.”

Differences apply in Scotland, where the government has proposed a definition which includes a “domestic building or residential building higher than 11 metres.”

Accountable Persons under the Building Safety Act

Higher-risk buildings are subject to numerous requirements, both during the construction and occupation phases, which are subject to oversight by the new Building Safety Regulator (BSR) which came into effect in April. The occupation phase will require ‘Accountable Persons’ and the ‘Principle Accountable Person’ to fulfil various duties.

Section 72(1) of the Building Safety Act defines an Accountable Person (AP) as: A person who holds a legal estate in possession in any part of the common parts; or. A person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts. They can be an individual, a partnership, or a corporate body. If there are multiple APs for a building, the AP responsible for repairing the exterior and structure of the building will be recognised as the Principal Accountable Person (PAP).

Under the Building Safety Act, Building owners and managers must appoint a Principal Accountable Person who will be responsible for various critical duties, including registering the building with the BSR, applying for a Building Assessment Certificate and displaying it in the building, preparing a Safety Case Report, maintaining the important information necessary for safely managing the building, developing a resident engagement strategy and complaints procedure. The PAP will also be responsible for reporting certain occurrences, such as fires, to the BSR.

Driving best practice within the construction industry

The construction supply chain will also have critical responsibilities during the construction phase, working in collaboration to ensure that all work meets compliance with Building Regulations and the requirements of the Building Safety Act. The BSR will apply evidence-based oversight of any shortfalls in compliance.

The construction industry is being encouraged to go beyond the minimum requirement and advocate best practice throughout a project. In many cases, that means the use of materials that not only meet, but also exceed the standards required by law. Central to the Grenfell tragedy which led us to this point, façade design now provides a clear example of how designers, developers and contractors can drive improvements by choosing elements which meet the highest possible standards in fire safety even when a lower standard is sufficient for compliance .

Cladding requires a minimum Euroclass A2-s1,d0 fire safety rating, denoting limited combustibility, but breather membranes and vapour control layers installed behind the cladding are not currently subject to the same standard, only requiring Euroclass B,s3-d0. That inconsistency is likely to receive more scrutiny in the years ahead. In the meantime, those involved in façade design and construction should opt for Euroclass A2-s1,d0 solutions where possible. In the case of higher-risk buildings, it is hard to justify any approach which does not seek to maximise protection within the fire safety concept.