New rules issued on building safety for when buildings are occupied

The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 are one of a number of new sets of regulations on building safety that have been issued. No date has yet been set for them to come into force, but many of the other new rules – including those relevant to the design and construction of new higher-risk buildings, and to ongoing projects – take effect on 1 October 2023.

Higher-risk buildings are defined under the 2022 Building Safety Act as buildings in England containing at least two residential units and which either measure at least 18 metres in height or are at least seven storeys tall, and hospitals and care homes which meet the same height threshold.

Higher-risk buildings cannot be occupied, under the new building safety regime, until a completion certificate has been issued by the building safety regulator, the Health and Safety Executive (HSE). However, even if buildings meet all the building safety requirements to obtain a completion certificate, significant building safety obligations continue during the occupation phase. The new regulations provide much of the detail on those requirements, although further guidance is anticipated to follow.

The new regulations, for example, provide clarity on the standards applicable to record-keeping duties pertaining to the ‘golden thread’ of information that will need to be maintained about buildings. They follow through on the government’s proposal to ensure that information and documents are stored and transferred electronically, are accessible, accurate, up-to-date and secure, act as a single point of truth, and are interoperable and transferable.   

Building safety expert Katherine Metcalfe of Pinsent Masons said: “The government has confirmed its intention to rely on these general principles, rather than mandating the use of a particular digital solution. Problems moving the golden thread between different systems can be anticipated, particularly when construction duty holders transfer information to the occupation phase duty holders. It will be important to plan for this at the outset of new projects.”

The regulations also provide more detail on the duty the ‘principal accountable person’ (PAP) for an occupied higher-risk building is under to prepare a residents’ engagement strategy (RES) for promoting the participation of residents in the making of building safety decisions. They also elaborate on obligations arising under the Building Safety Act to disclose building safety information to residents and establish a complaints system.

More detail is also contained in the regulations on what information PAPs will need to include when preparing, and revising, safety case reports. Safety case reports need to be submitted to the building safety regulator by PAPs.

The Building Safety Act requires PAPs to form safety case reports based in part on information provided by other ‘accountable persons’ (APs) for the building, stipulating that such reports must contain “any assessment of the building safety risks made … by an accountable person for the building” along with “a brief description of any steps taken [to manage those risks] by an accountable person for the building”. The new regulations go into more detail requiring PAPs to, for example, include “a description of the possible scenarios of building safety risks that have been identified by each AP …, the likelihood of those risks materialising and the assessment of the likely consequences if they do materialise” in their reports, as well as a description of emergency plans in place for the building.

Parts of the new regulations also add clarity to the duties APs are under to record and report design issues, incidents or situations relating to the structural integrity and fire safety of the building which create a risk of a significant number of deaths or injuries under a new ‘mandatory occurrence reporting’ regime.

Examples of the types of ‘safety occurrences’ that will need to be recorded and reported are outlined in the regulations. They include unauthorised work, the discovery of structural or fire safety defects, or a fire which breaches compartmentation. The building safety regulator is expected to issue further guidance to help duty holders.

One area where more clarity is needed concerns the timeframe within which PAPs will be directed to apply for a building assessment certificate (BAC) after a new higher-risk building becomes occupied.

In 2022, the government proposed that for new builds, the PAP would be directed to apply for a BAC within six months of occupation. Concerns were raised in the consultation response that six months would be too long for a building to be occupied without a BAC to assure residents and building owners. The government has maintained its position that the direction can only be issued once the building is occupied. The building safety regulator is to publish its timeframe for issuing directions to apply for a BAC in due course. There are no new statutory provisions on this particular topic in the new regulations.

In the meantime, the PAP for existing higher-risk buildings must register their buildings by 1 October 2023. The HSE will begin directing PAPs to apply for BACs for these buildings from 1 April 2024, prioritising buildings based on risk.”

Metcalfe said: “Building owners and landlords of existing higher-risk buildings need to have a plan to identify and fill gaps in the golden thread. Failure to have the correct documentation in place, or to secure a BAC, will likely result in enforcement action and will also negatively impact asset value.”

A panel of Pinsent Masons experts will discuss the changes to the building safety regime at a webinar on 13 September - register now.