5 April 2023

The higher-risk buildings (descriptions and supplementary provisions) regulations 2023

On 6 March 2023, the government issued The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (Regulations), and these will come into force on 6 April 2023, albeit further guidance is anticipated in advance of the Regulations coming into force.

The impact of these Regulations is that Hospitals and Care Homes that are at least 18m or 7 storeys are now considered 'Higher-Risk Buildings' for the purpose of the design and construction phase pursuant to the Building Safety Act 2022 (2022 Act). This is by virtue of the Regulations supplementing and completing the definitions of 'Higher-Risk Building' at section 120D
of the Building Act 1984 (1984 Act). Prior to the Regulations, Hospitals and Care Homes were not within the scope of the definition of 'High Risk Buildings' under the 2022 Act (although the government had proposed their inclusion via regulations).

However, it should be noted that Hospitals and Care Homes where occupied are expressly excluded from the definition of 'Higher-Risk Buildings' pursuant to Part 4 and section 65 of the 2022 Act by virtue of Regulation 8 (i.e. from the occupation-phase duties). Therefore, Part 4 of the 2022 Act does not apply to Hospitals or Care Homes.

Nevertheless, Hospitals and Care Homes which are at least 18m or 7 storeys will be subject to the stringent safety regime established by Part 3 of the 2022 Act (i.e. the construction phase duties). Under Part 3, the following three gateways will apply during the building control process either as part of a new build or refurbishment of existing buildings:

GATEWAY 1

Fire statement: the applicant[1] must submit a fire statement to demonstrate that fire safety requirements have been considered and incorporated into proposals as part of the planning application.

Collaborative procurement options: the applicant will be required to consider appropriate procurement options to fit the gateway structure. For example, 2 stage tendering and early sub-contractor involvement, may align better with the gateway structures and the enhanced focus on safety.
Golden Thread of Information requirements: the 'Golden Thread' refers to information about the lifecycle of a building (including up-to-date safety information regarding the building, design, build and management) as well as continuous information management to ensure such information is accurate, accessible and easily understandable. It should be digital, interoperable and secure. The Golden Thread should be provided to the relevant person[2] prior to applying for a completion certificate. Therefore, it is important that there is suitable arrangement for the creation, management, maintenance, updating and storage of the digital Golden Thread of information which comply with the regulations (when enacted) and include requirements in contract documents.

Gateway 2

Building Control Approval: an application must be made to the new Building Safety Regulator (BSR) (set up as part of the 2022 Act) for building control approval. The BSR must be satisfied that the design meets buildings regulations and that safety management requirements for the completed building are realistic. Major changes to the works will require approval from the BSR before they can be made. It is an offence to commence construction without first obtaining such approval.

Gateway 3

BSR Approval: BSR approval must also be obtained upon completion of the works in the form of a completion certificate. The BSR assesses the application and carries out a final inspection to check compliance with building regulations, that documents are complete and accurate and that the Golden Thread is complete and has been provided as required. The BSR has 12 weeks to assess. The building cannot be registered or occupied before the completion certificate is issued.

The requirements for Higher-Risk Buildings are in addition to other general requirements which apply to all buildings under the 2022 Act such as: compliance with building regulations and a new "dutyholder" regime whereby specific individuals can have duties imposed on them in connection with, for example, the planning or management of the works.

We would be happy to discuss any of the above with you in more detail.

Footnotes

[1] This will typically be the developing entity but varies from project to project

[2] The relevant person for registration will be the Principal Accountable Person (PAP), but the developer will hand over the Golden Thread of information to them for the purposes of making the application. The PAP is the person under a lease who either occupies or has the obligation to repair/maintain the structure and exterior of the building. If the Trust owns a building and does not demise the whole premises including exterior and structure under a lease to another entity then the PAP is likely to be the Trust on that basis. That is the case even if a Project Co entity (or another) accepts a repairing obligation under contract as only repairing obligations under a lease give rise to PAP status.