Those responsible for higher-risk buildings will be required to create a register from April under the Building Safety Act’s new obligations. Rebecca Rees reviews how prepared the sector is for these important changes.
The Health and Safety Executive recently announced a campaign to help the owners of an estimated 12,500 existing higher-risk buildings to be ready for their obligations under the Building Safety act, some of which are due to commence from April. But with just a couple of weeks to go, how ready are we? And is the government itself even ready?
According to the government’s ‘Making Buildings Safer’ campaign, those who are ‘principal accountable persons’ for existing higher-risk buildings will be required to register their buildings with the Building Safety Regulator (BSR) from April 2023.
“The timeframe for registering all of the 12,500 existing higher-risk buildings by October 2023 seems ambitious.”
This was also confirmed in parliament by Dehenna Davison, parliamentary under-secretary of state at the Department for Levelling Up, Housing and Communities (DLUHC), during the delegated legislative committee debate on the forthcoming regulations on key building information (more on that below). She added that, "from October 2023 it will be a criminal offence, with either a fine or imprisonment as a sanction, not to register or come forward to register".
This means that principal accountable persons will only have six months to register their buildings and provide the requisite key building information (within 28 days of submitting their application). So how can building owners prepare for this? In this article, we highlight some of the crucial secondary legislation that will underpin the new regime, and explore how such regulations will impact building owners seeking to comply with their obligations.
1. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023
The first issue for building owners to overcome is working out whether their building is even a higher-risk building at all.
The above regulations, which complete the definition of higher-risk buildings for the purposes of the in-occupation obligations under the Building Safety act, were only made on 6 March – just one month before they come into force. Moreover, as at the date of writing, we have still yet to see the promised detailed guidance on these regulations from DLUHC.
Although many buildings will fairly obviously be within scope, many others (such as those which are connected to complex structures) are more difficult to categorise. The DLUHC guidance will be needed to assist building owners to determine whether their buildings are within scope – or indeed which parts of their buildings are within scope, and therefore who the principal accountable person will be.
The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023
Section 89 of the Building Safety act allows the government to make regulations prescribing the content and format of the key building information which must be submitted by the principal accountable person in respect of each higher-risk building. The draft regulations are only now being debated in parliament, and whilst amendments are unlikely, the final version of the regulations won’t be passed into law until later in March.
The government has confirmed that the purpose of collating the key building information from the owners of each higher-risk building is to "allow the regulator to determine which buildings should be required to apply for a building assessment certificate as a priority, allowing a review of wider risk management and safety arrangements".
Although most of the key building information set out in the draft regulations should be readily available to most building owners, some items may require further investigation, notably the detailed composition of materials used in the structure, external walls, insulation and roof covering of the higher-risk building.
Building owners should therefore ensure that they ascertain such information as soon as possible, even as (once again) we await the detailed guidance which is supposed to accompany these regulations along with directions which will be issued by the BSR setting out the precise format in which the information must be submitted.
3. Further regulations setting out the registration process
But what about the registration process itself? All we know so far is that it will commence in April and must be done by October. The government has indicated that further regulations will "shortly" be laid before parliament setting out the registration requirements in more detail. There must be some concern as to whether the government and the BSR are themselves ready for the commencement of the registration process.
4. Applying for a building assessment certificate and compliance with accountable person duties
As noted above, once the BSR has undertaken an initial review of the key building information submitted as part of the registration process, it will be able to identify trends and prioritise which types of buildings to urgently call in for applications for a building assessment certificate.
These assessments will require the accountable persons to prepare and submit a full safety case report (which must include more detailed consideration of the building safety risks and how they are to be managed), as well as demonstrate full compliance with the suite of obligations on the accountable persons, such as implementing a residents’ engagement strategy.
Accountable persons whose higher-risk buildings are likely to fall within the high priority types of buildings should therefore ensure that they are ready to provide the safety case report relatively soon after registration, as well as be fully in compliance with the whole range of obligations imposed on accountable persons under the in-occupation regime of the Building Safety act.
But, once again, regulations governing the detail of these processes and outlining the detail of these obligations will only be brought forward by the government "later in the year". We will need to carefully monitor the timetable for such secondary legislation and review any associated guidance as soon as it is made available.
Ready or not?
In summary, the timeframe for registering all of the 12,500 existing higher-risk buildings by October 2023 seems ambitious to say the least. The prospect of urgently navigating the fuller building assessment certificate process for the high priority types of higher-risk buildings is likewise ambitious. Given the serious consequences of failure to comply, all relevant building owners will need to carefully monitor the forthcoming publication of a raft of secondary legislation and react to its detail very promptly indeed.
Rebecca Rees is a partner and head of public procurement at Trowers & Hamlins.
