The government has recently completed a consultation on the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations which flow from the Building Safety Act 2022. Ron Alalouff summarises the provisions consulted on.
Higher-risk buildings are defined by their height and use, which the government says are international industry-accepted ways of identifying buildings where the consequences from fire spread can be significant.
The government is proposing to make regulations setting out technical definitions, excluding certain buildings from the new regime and – for the design and construction phase of the new regime – define the use criteria for a building to be included. It’s also proposing the regulations define how a building’s height and storeys are measured.
The Building Safety Act 2022 provides that buildings at least 18 metres or at least seven storeys high with at least two residential units will be within the scope of the new regime when they are occupied. These buildings will also be included during design and construction, along with hospitals and care homes.
The types of buildings designated higher-risk may not be set in stone, however. If the Building Safety Regulator believes the required tests for adding a category of building to the definition of higher-risk building are met, then they must make a recommendation to this effect to the Secretary of State.
The regulations will not amend which buildings are covered by the leaseholder protection scheme, as buildings covered by the leaseholder protections are already set out in the Building Safety Act, nor do they amend which buildings are covered by any of the remediation schemes.
The following is a summary of the points raised in the consultation and on which respondents were asked to comment:
Consultation point 1: The government proposes to align with the Building Act 1984 and define building as including any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.
Consultation point 2: The government is proposing to define higher risk buildings under design and construction as including buildings which contain at least two residential units (the Building Safety Act defines residential unit as a dwelling or any other unit of living accommodation, for example a flat or rooms in a university hall of residence where amenities are shared), care homes, and hospitals.
Consultation point 3: It’s proposed to include care homes and hospitals in response to concerns raised during pre-legislative scrutiny from stakeholders, particularly around design and construction. Including hospitals and care homes ensures high-rise buildings which may be occupied by those unable to evacuate quickly, or without assistance, are designed and constructed in accordance with the new regime.
Consultation point 4: The government proposes to exclude from the definition of higher-risk buildings secure residential institutions (for example, prisons) and temporary leisure establishments (e.g. hotels) as the new regime is focused on providing proportionate rigour where most necessary.
Consultation point 5: The government proposes to exclude military premises as the Ministry of Defence have their own building and fire safety arrangements and specific security considerations which need to be considered. The MOD will be applying the key elements of the new regime in their arrangements, and the government expects to set up appropriate liaison arrangements between the MOD and the Building Safety Regulator.
Consultation point 6: The current focus of the in-occupation regime is on domestic buildings. It’s therefore proposed to exclude other types of buildings that are wholly subject to the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order) when they are in use. Buildings proposed to be excluded are care homes, hospitals, secure residential institutions, temporary leisure establishments and military premises. Care homes and hospitals will be excluded because these buildings are workplaces, and therefore all parts of them are subject to Fire Safety Order.
Consultation point 7: It’s proposed to exclude temporary leisure establishments and secure residential institutions, as these buildings are likely to be subject to requirements under the Fire Safety Order.
Consultation point 8: It’s proposed to exclude military premises as the MOD have their own building and fire safety arrangements, given the specific operational needs of their buildings. The MOD will be applying the key elements of the new regime in their arrangements, and it’s expected that appropriate liaison with the Building Safety Regulator will be set up.
Consultation point 9: The government is proposing to define ‘hospital’ – which it’s proposing to include in the design and construction part of the new regime – as meaning a building which is a hospital within the meaning of the National Health Service Act 2006 and has at least one bed intended for use by a person admitted for an overnight stay. The National Health Service Act sets out that ‘hospital’ means any institution for the reception and treatment of persons suffering from illness, any maternity home, and any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation. It includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and ‘hospital accommodation’ must be construed accordingly.
It’s proposed to include care homes and hospitals in response to concerns raised during pre-legislative scrutiny from stakeholders, particularly around design and construction. Including hospitals and care homes ensures high-rise buildings which may be occupied by those unable to evacuate quickly, or without assistance, are designed and constructed in accordance with the new regime.
Consultation point 10: It’s proposed to include care homes in the design and construction parts of the new regime. The Care Standards Act 2000 defines a care home as providing accommodation, together with nursing or personal care, for people who are or have been ill, who have or have had a mental disorder, who are disabled or infirm, or who are or have been dependent on alcohol or drugs. Hospitals and children’s homes are not considered care homes under this definition, with children’s homes considered sheltered housing and therefore in scope for all parts of the new regime where they meet the height threshold.
Consultation point 11: It’s proposed to define a secure residential institution as one used for the provision of secure residential accommodation, including as a prison, young offenders’ institution, detention centre, secure training centre, custody centre, short term holding centre, secure hospital or secure local authority accommodation.
Consultation point 12: The government intends to define temporary leisure establishment – which it’s proposing to exclude from all parts of the new regime – as meaning a hotel or similar establishment which offers overnight accommodation for the purpose of leisure. The definition includes hotels, hostels, boat hotels, permanently docked cruise ships and serviced apartments for short term use.
Consultation point 13: It’s proposed to define military premises – which are to be excluded from all parts of the new regime – as meaning military barracks or living accommodation for the Ministry of Defence, UK armed forces, any visiting force, or an international headquarters or defence organisation. The definition covers buildings which are used as military barracks, as well as buildings which are used for the purpose of housing military personnel and/or their families.
Consultation point 14: It’s proposed that the height of a building is to be measured from ground level to the top floor surface of the top storey of the building (ignoring any storey which is a roof-top machinery or plant area or consists exclusively of machinery or plant rooms). This method has been chosen as it is in accordance with Diagram D6 of Approved Document B under the Building Regulations 2010. Buildings should be measured from the ground level of the lowest side of the building to the upper surface floor of the top storey (excluding any top storeys consisting exclusively of plant rooms). Respondents were asked whether they agree this method for determining the height of a building is the right one, and if they don’t, what changes or alternative methods there should be.
Consultation point 15: The government proposes that any storey which is below ground level is to be ignored; storeys which are purely plant machinery are to be ignored; and any gallery floor is to be treated as a storey if its internal floor area is at least 50% of the internal floor area of the largest storey in the building which is not below ground level. A storey is treated as below ground level if any part of the finished surface of the ceiling of the storey is below the ground level immediately adjacent to that part of the building. It’s also proposed that storeys should be counted from the side of the building.
The government has chosen a two-pronged test for height to prevent what it says would be ‘gaming the system’. During the Building a Safer Future consultation, some stakeholders raised concerns that developers might seek to drop the building height but keep the same number of storeys, in order to avoid the new more stringent regime. The proposed regulations follow the approach taken in Approved Document B, diagram D5. Respondents were asked whether they agree this method for determining storeys is the right one, and if they don’t, what alternative approach should there be and why.
Consultation point 16: Respondents were asked whether they agree with the proposed definition of ‘gallery’, and if not, what alternatives would they suggest and why.
Consultation point 17: The government also sought views on the potential impacts its proposals may have on groups of people with protected characteristics. Protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
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