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Higher Risk Buildings (HRBs) in England

New dutyholder regime outlined

Mark Pritchard

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Mark Pritchard | Partner

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"Curved glass building.

Background

  • The Higher-Risk Buildings (England) Regulations came into force on 6 April 2023.
  • This dutyholder regime has been introduced under various sections of the Building Safety Act 2022 (BSA).

Definition of Higher Risk Buildings

i. 18m tall or higher; and 
ii. Contains two or more residential units.
or
i. 7+ storeys tall; and
ii. contains two or more residential units.

Excluded buildings: those used entirely as a hotel, secure residential institution, military premises or prison.

These buildings are covered by separate workplace safety regulations.

Note: hospitals and care homes can be a HRB (if they meet the height/storey requirements) for gateway 1 and 2 but are excluded for gateway 3. Clarification as to the Gateways is set out below and recent regulations confirm they do not need to be registered with the BSR.


✓ Height measured from lowest point on ground level
✓ Basement included as a storey if any part is visible from ground level
✗ Basement not counted as a storey if no part is visible
✗Rooftop machinery is excluded from height measurements

Detailed regulations defining HRB's have been published by the government.  

If you want specific advice as to whether your building is within the scope of the definition, you may wish to contact your surveyor.

According to the government, there are currently 12,500 HRBs in England, with an estimated 1.13 million residential units within these buildings.

Registering HRBs

HRBs must now be registered with the Building Safety Regulator (BSR) by 30 September 2023. 

Connected structures may be registered as one building if they are connected by either:

(i) an internal wall containing normal use doors; or 
(ii) a walkway, lobby or basement, containing a residential unit.

 

Lifecycle of HRBs

The BSR oversees 3 Gateways (only Gateway 1 is in force at the date of publication) which are:

  • Gateway 1 - The planning application stage:

    Fire safety matters must be included in planning applications for Higher-Risk Buildings.
    These provisions fall under the Town and County Planning (Development Management Procedure) (England) Order 2015 (as amended).

  • Gateway 2 - The pre-construction/building control stage:

    The principal contractor, and other duty holders, must submit a building control approval application to the BSR outlining design proposals. No construction can begin until such approval is granted. 

    This authorisation carries an estimated turnaround time of 12 weeks.

  • Gateway 3 - Post-completion of construction:

    The developer must submit a Completion Certificate application to the BSR.

    This authorisation carries an estimated turnaround time of 12 weeks. No occupation is permissible until approval is granted by the BSR.

Accountable Persons (APs)

All individuals or organisations that have an interest in possession of common parts, or a legal obligation to repair those areas are Accountable Persons.

Common parts are areas used by residents, such as:

  • the structure and exterior of the building
  • corridors
  • lobbies
  • staircases

Examples of an accountable person:

  • freeholder or estate owner
  • landlord
  • management company
  • resident management company
  • right to manage company
  • commonhold association

Principal Accountable Person (PAP)

Each building must have one clearly identifiable PAP. If there is just one AP for a building, they will be the PAP.

The PAP can be an individual or an organisation, such as a commonhold association, local authority, or social housing provider. 

  • If there are multiple APs, then whoever owns or has a legal obligation to repair the structure and exterior of the building is the PAP.
  • APs and PAPs can be accountable for the fire and structural safety risks of more than one building. 

If there is uncertainty over who is an AP, or the PAP, an interested party can apply to the First-tier tribunal for a decision. An interested party can be:

  1. The Building Safety Regulator
  2. An individual or organisation who owns, or claims to own, any part of the common parts
  3. A person or organisation who had, or claims to have, a repairing obligation for any parts of the common parts.
 

Obligations and consequences

  • Part 4 of the BSA imposes extensive obligations on the PAP of a HRB, including:

    1) Apply to the BSR to register existing HRBs before 30 September 2023. 

    Information required includes:

    • The number of floors at or above ground level
    • The building height in metres
    • The number of residential units
    • The year it was originally built, or if the exact year is unknown, a range can be provided
    • Names and contact details of the PAP and any other APs
    • If the building was completed in 2023, the name of the building control body that issued the completion certificate/final notice and the relevant reference number
    • For buildings completed before 2023, the applicant should take "all reasonable steps" to submit the completion certificate or final notice information

    2) Obtain a Completion Certificate (Gateway 3) before occupation.

    3) Once registration has been submitted: prepare and submit the Key Building Information to the BSR within 28 days. 
    The PAP is under an ongoing duty to notify the BSR of any change to the Key Building Information within 28 days of becoming aware.

    4) Once the building is occupied, prepare a Safety Case Report (including assessments of other APs if applicable) and submit it to the BSR.

    5) Apply for a Building Assessment Certificate within 28 days of a request by the BSR.

    6) Display an up-to-date Building Assessment Certificate, any Compliance Notice and other information about APs (if applicable) in a prominent place for residents.

    7) Create and implement a system to investigate complaints about Aps.

     

  • Part 4 of the BSA also imposes extensive obligations on APs (including the PAP) of a HRB, such as:

    1) Once occupied, assess the section of the HRB they are responsible for in relation to Building Safety Risks and take reasonable steps to reduce such risks.
    Provide this report to the PAP, who will collate the Safety Case Report.

    2) Record and share up-to-date prescribed information about the HRB with the BSR and residents.

    3) Promptly respond to any requests for information from residents.

    4) A duty to cooperate with other APs.
    Should an AP become aware of a lack of cooperation, they are under a duty to report this to the BSR.

    The BSA envisages a system for keeping all the safety critical information relating to a HRB in one place "the Golden Thread of Information". Full details are awaited from the Government, but it is anticipated that the requirements will extend well beyond the information required for registration of an HRB.

    Non-compliance can result in serious consequences

Steps to take now:

Non-compliance can result in serious consequences

Step 1

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Owners need to identify which of their properties fall within the category of Higher Risk. If there is uncertainty, take professional advice.

Step 2

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Owners will want to ascertain who are the APs and the PAP.

Step 3

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The PAP (or someone on their behalf) is required to register with the BSR by 30 September 2023 and compile the necessary information.

Step 4

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Prospective owners will want to check that the building has been (or is in the process of being) registered, and that all safety and structure information is compiled on time.

Step 5

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Note: the PAP must advise the BSR of any changes up to 28 days after becoming aware of it. These include the identity of the PAP or other registration information; for example, on completion of a purchase.

Mark Pritchard

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Mark Pritchard | Partner

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