The government has now published its response to the consultation on the draft Higher-Risk Buildings (Description and Supplemental Provisions) Regulations. This brings clarity to the industry on which buildings will fall within the scope of the higher risk regime under the Building Safety Act.

The consultation sought views on how to define a “Higher-Risk Building” for the purposes of determining which buildings would fall within the scope of the new regime. There are two parts to this (1) the design and construction phase for new higher-risk buildings and building work to existing higher-risk buildings; and (2) a new scheme and responsibilities when those buildings are in occupation.

In summary, the draft Regulations laid before Parliament mean that, during the design and construction phase, residential buildings (i.e. at least two residential units), care homes and hospitals which are at least 18m in height, or have at least 7 storeys, will be subject to the new regime. This includes new builds and building work to existing buildings, including refurbishment. During the occupation phase, residential buildings which have at least 18m in height or at least 7 storeys, will be subject to the occupation requirements of the new regime. The occupation requirements will not apply to care homes and hospitals. Further:

1.  The following buildings have been excluded from the definition of “Higher-Risk Building” and will not be subject to the new regime, either during the design and construction phase or the occupation phase:

• Hotels;
• Secure residential institutions – i.e. prisons;
• Military barracks;
• A building that contains living accommodation (either alone or in combination with other accommodation) (i) provided by the Ministry of Defence; or (ii) for His Majesty’s forces; or (iii) any visiting force or any designated international headquarters or defence organisation.

2.  The government has updated the definition of “buildings” to include plant rooms and machinery, giving the Building Safety Regulator the ability to regulate them as parts of “Higher Risk Buildings”.

3.  For the purposes of measuring height, it has been clarified that:

• The height of a building is to be measured from ground level to the top of the floor surface of the top storey of the building – i.e. the vertical distance a person would have to travel to escape the building from the top floor.
• The measurement should be taken from the lowest part of the surface of the ground adjacent to the building – i.e. if on a slope, it will be the lowest part.
• Not all plant and machinery levels are excluded; only those which consist exclusively of rooftop plant rooms or rooftop machinery.

4.  When counting storeys the following should be ignored:

• Any storey below ground level;
• Any storey which is exclusively rooftop plant or rooftop machinery; and
• Any storey consisting of a galley which has a floor area of less than 50% of the internal floor area of the largest storey vertically above or below.

The proposals to include/exclude other types of accommodation and to lower the height restriction, for example, from 18m to 11m, were rejected on the basis that the government is seeking to adopt a proportionate approach guided by risk profile. The government’s response also refers to the fact that certain buildings – i.e. care homes and hospitals – are regulated by the Fire Safety Order when in occupation such that, taken together, the government considers the approach a proportionate one.

The response will bring welcome clarity to the industry on which buildings will fall within the scope of the new higher-risk regime. The government has stated its aim for this to be “future proof”. The scope may only be amended following “evidence based advice or recommendations” from the Building Safety Regulator who has oversight of the new regime.

The next question for many is when the new regime will come into force and the transitional provisions. As to that, we await the government’s response to the wider consultation that we reported on earlier this year and current indications suggest October 2023 remains the target date.

DAC Beachcroft has a dedicated building safety team with extensive experience advising all stakeholders on how best to prepare for, manage and mitigate the implications of the Building Safety Act and associated legislation. As well as proactive advice on how the legislation affects commercial interests, we help our clients navigate the risks in procurement and contract management, legacy claims, extended exposures under the Act, construction products, commercial disputes and insurance issues. We also offer bespoke training on how the Building Safety Act impacts across the industry.