Building safety regime for registration of existing higher-risk buildings goes live
The owners of approximately 12,500 existing higher-risk buildings need to be ready for their new obligations under the Building Safety Act, starting with registering every higher-risk building by no later than 1 October 2023.
This month, the Building Safety Regulator opens its online registration portal to enable owners of higher-risk buildings to submit applications to register their buildings, all which must be completed in just under six months' time. This means that on average, applications to register over 70 buildings will need to be submitted every day from now until the end of September.
Here, we take a look at what needs to be done straight away, as well as what preparations are required in advance of the full range of building safety duties coming into force later this year.
What buildings are caught by this regime?
The six-month registration window relates to existing occupied higher-risk buildings. Whilst the key parameters of 18 metres or seven storeys have been known for a long time, the detailed definition of such higher-risk buildings, including how to measure their height, was only passed into law on 6 March 2023, just one month before the registration window was due to open.
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. 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.
At the time of writing, the detailed practical guidance on how to apply this statutory definition in real life have yet to be published by the Building Safety Regulator. Please see our earlier article here for more commentary on the nuances of the definition of higher-risk buildings.
Who is responsible for the registration application?
Each higher-risk building will have a Principal Accountable Person (PAP) who will be responsible for ensuring that the building is registered. Although the PAP can appoint an agent to prepare the submission, it will nevertheless retain the ultimate responsibility for such duties and the associated liability for any failures.
Again, in many cases, it should be obvious who the PAP is for the relevant higher-risk building (e.g. the freeholder, where a standalone residential building is subject only to individual apartment leases or tenancies granted by that freeholder).
But with larger mixed-use schemes involving multiple owners, each responsible for different aspects of the complex building and its common parts, some detailed analysis of the extent of ownership and legal responsibilities for repair and maintenance may be needed to establish which of the various owners is the PAP. Other owners may be an Accountable Person (AP), who will have other building safety duties, including to co-operate with and assist the PAP.
What information needs to be included in the application?
A recent flurry of secondary legislation has helped to flesh out the details of what information needs to be submitted to the Building Safety Regulator upon registration. This includes:
- information about the PAP and each AP (including contact details of named individuals);
- basic information about the building (including its address, height and date of construction); and
- details of the building control final certificate in relation to the building.
In addition to the above registration information, a fuller pack of "key building information" will also need to be provided within 28 days of submission of the initial registration application. The regulations prescribing this key building information were passed into law on 26 March, and require quite a range of information to be provided, including details of:
- the use of each part of the building and any ancillary buildings;
- the composition of materials used in the structure, external walls, insulation and roof covering of the building;
- the staircases, the type of energy supply and any fixtures attached to the external walls;
- the evacuation strategy; and
- the fire and smoke control equipment within the 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 to be issued by the Building Safety Regulator setting out the precise format in which the information must be submitted. It is understood that the online portal will only be ready to receive the key building information from 3 May 2023.
What happens if the deadline is missed?
Both the Government and the Building Safety Regulator have been clear that failure to comply with the 1 October 2023 deadline for registration of higher-risk buildings will constitute a criminal offence by the PAP.
In most cases, the PAP will be a corporate body such as a company or perhaps a housing association or local authority. Under the Building Safety Act, any criminal offences committed by such corporate bodies in relation to higher-risk buildings will also be deemed to have been committed by any director, manager, secretary or other similar officer of the corporate body if they had consented to the breach or were negligent in causing the breach.
The most serious breaches could result in up to two years' imprisonment along with a fine which continues to increase until the building has been registered. Given this, senior management at organisations with a large number of higher-risk buildings will need to personally ensure that the registration requirements are complied with in good time.
When do buildings which are still being constructed need to be registered?
Higher-risk buildings for which construction has already begun, or will begin before 1 October 2023, but where practical completion will occur after that date are known as "transitional buildings". These buildings will not need to go through Gateways 2 and 3, and the Building Safety Regulator will not be the building control authority for them.
However, these transitional buildings cannot be occupied until they have been registered, and yet the application for registration cannot be submitted until the building control final certificate has been issued. This means that a building owner needs to consider the timing and sequencing of its completion, registration application and handover procedures to ensure that it avoids a significant period of time between handover from the main contractor and the point at which it can either sell the apartments or move their tenants in – and that the processing by the Building Safety Regulator of its registration application does not constitute an unanticipated and unwelcome delay.
When do the remainder of the in-occupation building safety duties commence?
It is anticipated that all of the other duties on APs and PAPs will formally commence on 1 October 2023. These include continually assessing and managing building safety risks, preparing a safety case report, maintaining the "Golden Thread" of information, complying with mandatory occurrence reporting, as well as operating a residents' engagement strategy and complaints handling procedure.
APs and PAPs would be well advised start preparatory work on these matters in good time before the go live date. Once these obligations are in force, the Building Safety Regulator will start calling in applications for a building assessment certificate – a process by which the safety case report and all other aspects of compliance with the regime will be assessed. Further, such information may well be required by the Building Safety Regulator in the event a building safety risk contributes to a safety incident ahead of the relevant building being called in for assessment.
The Building Safety Regulator will operate a triage system, prioritising buildings in the highest risk categories which will be called in for assessment from April 2024, with it taking five years to assess all of the 12,500 existing higher-risk buildings.
Please do contact us if you think you would benefit from any assistance in navigating the registration process and preparing for compliance with the new duties.