Building Safety Act – Key concepts: What defines a higher-risk building or relevant building?

Though the Building Safety Act 2022 has introduced new measures that apply to all buildings, the most significant measures introduced apply to ‘higher-risk buildings’ and ‘relevant buildings’. Here, the fire safety team at law firm, Addleshaw Goddard, explains what these terms mean and which buildings are in scope at present.

Following the Grenfell Tower tragedy, an independent review of building regulations and fire safety was undertaken, led by Dame Judith Hackitt. This review was highly critical of the building industry, exposing serious failings across the system of building and managing high-rise buildings and clearly stating the need for major reform to ensure the regulatory system was ‘fit for purpose’.

Enter, the Building Safety Act 2022 (the Act). The Act is one of the most transformative in a generation, introducing new measures that apply to all buildings.

However, we do know that the most significant measures introduced apply to ‘higher-risk buildings’ and ‘relevant buildings’. This article aims to set out what these terms mean.

What is the statutory definition of a ‘higher-risk building’?

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’ is defined as a ‘dwelling’ or any other ‘unit of living accommodation’, and so has wide meaning.

The concept of ‘dwelling’ as applies under the Landlord and Tenant Act 1985 (LTA) is likely to apply (‘a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it’).

The addition of the alternative ‘unit of living accommodation’ gives the term a much wider meaning since it is likely to include (for example) student accommodation and other temporary accommodation where basic amenities are provided (although hotels will not be within scope).

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 regulations indicate that, during the construction phase, the definition of higher-risk building is extended to include care homes and hospitals that meet the height requirement. Note that this extension does not apply to the occupation phase.

Stricter regulatory standards over higher-risk buildings

In brief, higher-risk buildings are subject to numerous requirements, both during the construction and occupation phases:

• Construction phase – There is a new building control regime, ‘Gateway’ requirements, and the imposition of various duties, culminating in obtaining a Completion Certificate from the Building Safety Regulator (BSR).
• Occupation phase – There is a new occupation regime, with a requirement for Accountable Persons and the Principle Accountable Person to fulfil various duties, including for the latter the duty to ensure that the building is registered with the BSR.

The graphic below provides a useful overview:

What is a ‘relevant building’?

Drastic new rights and remedies have also been introduced to protect leaseholders (amongst others) in relation to other buildings in England that:

• are 11m+ in height or more than 5 storeys; and
• contain at least 2 dwellings

These include:

• Remediation Orders – which can be sought against a landlord to require the remediation of specified relevant defects.
• Remediation Contribution Orders – which require a specified body corporate or partnership to make payments to a specified person for the purpose of meeting costs incurred or to be incurred in remedying relevant defects. There is a very wide scope of who can be subject to these orders, with the courts even able to look beyond the corporate veil to parent and sibling entities, or to consider those who were associated with an insolvent landlord.
• Schedule 8 Leaseholder Protections – which include e.g. that landlords cannot include the costs of cladding remediation works into the service charge.

Note that the application of these provisions is narrower since the wide-ranging alternative ‘unit of living accommodation’ is not relevant to the definition of buildings in scope.

Uncertainty remains over scope and application

During its passage through Parliament, the scope of the Act was subject to considerable debate. It has since been clarified to an extent. However, given so many aspects in relation to scope and obligations are the subject of regulation (many of which are still in draft form), these are areas that are not yet fully clear and remain subject to change.

For those who are in scope of the Act it is therefore paramount to take steps now to become familiar with the regulatory requirements, to identify subject matter experts and specialists who can support in the practical implementation of the necessary control measures and the creation of key documentation (e.g. the golden thread, safety case, etc…) and to introduce systems to ensure compliance with the published elements of the regulatory regime.

For further information, please contact Adrian Mansbridge or Natalie Sellar from Addleshaw Goddard’s specialist fire and building safety team.

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