In our previous update, we discussed the most recent changes to the Building Safety Act 2022 ("BSA") which came into force on 1 October 2023. For a high-level overview of these regulations, please click here.
It is hugely important that all those involved in the construction industry understand the new regulations and duties under the Act, as well as review their contracts to ensure they properly deal with them.
The definition of higher risk buildings (HRBs)
Whilst the BSA sought to improve building safety in a number of areas, it heavily focuses on its regulation of high-rise buildings in the aftermath of the Grenfell Tower tragedy.
This emphasis on increasing the safety of high-rise buildings is caught by its definition of "Higher-Risk Buildings", which it defines as any building in England which is:
- at least 18 metres tall or has at least 7 storeys; and
- contains at least 2 residential units.
The exclusion of hotels from the HRB Regime
Hotels and other temporary leisure establishments are currently excluded from the HRB Regime, both in respect of the design and construction phase, and the occupation phase. They are excluded regardless of how long these buildings are occupied by individuals or groups of customers. This is because they are "already regulated by the Fire Safety Order, and generally, these buildings are staffed 24/7, have multiple routes of escape, signage and emergency lighting to assist evacuation and have a higher level of detection and alarm systems than residential buildings".However, it is important to note that a hotel will only be excluded from the regime if the relevant building comprises "entirely of a hotel". Hotels might be integrated into a mixed-use building, consisting, for example, of other residential apartments, a gym or retail units. Additionally, serviced apartments (or apart-hotels) are considered to be HRBs, however, what is classed as "serviced apartments" is not defined in the legislation or the supporting guidance. In these cases, it becomes vital to determine whether the exclusion applies to the hotel in question, and you should ensure that you seek appropriate legal advice in relation to this.
Supporting guidance considers hostels which also provide overnight accommodation to customers for leisure or business as a type of hotel – therefore, if a building is used entirely as a hostel, then it is not considered a higher-risk building.
The Building Regulations etc. (Amendment) (England) Regulations 2023
Despite hotels being excluded from the HRB regime, other buildings within the leisure and hospitality sector may still fall under it and it is important to note that the updates to the BSA also provide for further regulations which are discussed below. Please also refer to our original overview here for more detailed guidance.
The Building Regulations etc. (Amendment) (England) Regulations 2023 introduce a new regime (the "dutyholder regime") to works that are undertaken in England under The Building Regulations 2010 including works to hotels or for the building of hotels. These requirements will apply to buildings and building work in England, including that undertaken on HRBs.
In a similar way as under the CDM Regulations, a principal designer and principal contractor may need to be appointed to a project.
General duties for all dutyholders
There are some general dutyholder responsibilities which all dutyholders must comply with during the design and construction phase. These are to:
- plan, manage and monitor their work to ensure compliance with building regulations; and
- co-operate with other dutyholders to ensure that the work is in compliance with all relevant requirements.
Additional duties for dutyholders
In addition to their general responsibilities, each of the dutyholders have specific duties which are appropriate to their role. As a high-level overview, these generally range from managing, monitoring and co-ordinating the work to ensure compliance with relevant requirements, to liaising and sharing information with the relevant dutyholder.
To complicate matters further, there is an additional layer of duties on any project involving HRB work, which imposes more onerous obligations on the dutyholders. This includes identifying and sharing information about the nature of the HRB project to ensure all dutyholders comply with the new regulatory regime for HRBs.
Competency
Competency is also a key part of the new regime – from 1 October 2023, everyone carrying out design or building work (and not just in respect of HRBs) must be 'competent' and demonstrate their competence. This means having the skills, knowledge, experience and behaviours necessary where the person is an individual, and the organisation capability where the person is not an individual. For further points to note in relation to enhanced competency requirements for higher-risk buildings please click here.
The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023
Under these regulations, the Building Safety Regulator becomes the building control authority for all new-build HRBs which means that local authorities and approved inspectors will no longer be able to supervise higher-risk building work.
It is important to point out that under these regulations, the Building Safety Regulator has extensive enforcement powers for non-compliance which can result in fines and possible imprisonment.
This continues to be a complex and evolving area of law with a further raft of regulation expected in early 2024. If you need further advice on any points from this article or more generally on construction law, please contact us to speak to a member of our Construction Team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
