Under the Building Safety Act 2022 (the “BSA”), there is now a more stringent building safety regime in place for buildings defined as “higher-risk buildings”. Within the BSA there are two separate definitions for the term higher-risk buildings, one relating to the design and construction phase and the second to the occupational phase for a building. However, both definitions permit the definition to be developed by way of secondary legislation.

On 9 June 2022, the Government initiated a consultation on potential changes to the definition of higher-risk buildings with the view to introducing new regulations, entitled the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations (the “HRB Regulations”), which, once implemented, will "complete the definition of higher-risk building for the new building safety regime" in England.

The Consultation

Under the consultation the Government is seeking responses from representatives of the construction industry, developers and the owners and/or managers of higher-risk buildings on various proposals for the HRB Regulations including:

• to clarify the definition of "building" for the purposes of the BSA in relation to both the design and construction phase and the occupational phase of the new building safety regime;
• in relation to both the design and construction phase and the occupational phase, to clarify that the definition of higher-risk buildings includes buildings of at least 18 meters in height or seven storeys and which comprise two or more residential units but excludes secure residential accommodation (e.g. prisons), temporary leisure establishments (e.g. hotels) and military premises;
• to confirm that, in relation to the occupational phase only, the definition of higher-risk buildings excludes buildings such as care homes and hospitals (on the basis that such buildings constitute workplaces during the occupational phase and hence are subject to a separate safety regime under the Regulatory Reform (Fire Safety) Order 2005); and
• setting out proposed detailed methodologies for determining a building's height and/or number of storeys.   

The consultation will last for a period of 6 weeks from 9 June, and closes on 21 July 2022.

Burges Salmon Comment

Given the complexity and sweeping nature of the new building safety regime imposed by the BSA, it is important that key definitions within the BSA are carefully scoped to ensure that the new building safety regime is workable and properly protects the occupants of higher-risk buildings.  

The consultation provides a valuable opportunity for all those involved in the design, construction and occupational phases of higher-risk buildings to contribute to the development of the definition of a higher-risk building and we encourage you to respond to the consultation. The consultation can be found here.

If you would like any advice in relation to the Building Safety Act 2022, or fire safety more generally, please contact Tom Weld.

 This article was written by Tom Weld and Kayla Urbanski.