The Building Safety Act 2022 (the Act) heralds a new era in the oversight of building safety.
The Act is one of the most transformative in a generation, introducing many new measures that apply to all buildings.
There remains significant uncertainty about the scope and application of the regime, not least because we are still waiting for secondary legislation to be published/come into force, to provide clarity over various aspects. However, we do know that the most significant measures only apply to 'higher-risk buildings' and 'relevant buildings'. We set out what these terms mean in more detail below.
A statutory definition of 'higher-risk building'?
A higher-risk building is one which:
- is at least 18m/7 storeys in height; and
- contains at least 2 residential units
The term 'residential unit' is widely defined (a 'dwelling' or any other 'unit of living accommodation'). The concept of 'dwelling' as it 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 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.
Higher regulatory standards over high risk buildings
Under the Act, higher-risk buildings are subject to numerous additional safety standards, both during the construction and occupation phases:
Other 'relevant buildings' caught by the new regime
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
- 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 has been clarified to an extent. However, many aspects are the subject of further regulation (much of which is still in draft form) 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.
Legal Director, Global Investigations
Associate, Global Investigations