The Building Safety Act 2022 (BSA), together with the suite of secondary legislation made under the Act, has established a more stringent building control regime for higher-risk buildings (HRBs). As we reported here, this new regime came into force – in England – on 1 October 2023, when the Building Safety Regulator became the building control authority for all HRBs in England.
But how does the position – and the definition of HRBs – differ in Wales? We explore this, as well as recent legislation made in Wales confirming the definition of HRBs, below.
Building safety in Wales
In 2011, various powers under the Building Act 1984 were devolved to the Welsh Government, including the power to make building regulations.
While parts of the BSA apply in Wales, in many instances it empowers the Welsh Government to implement secondary legislation setting out the building safety regime for Wales. In particular, under section 31 of the BSA the Welsh Government has the power to define "higher-risk building" for the purposes of the design and construction phase.
Further, the new Building Safety Regulator has jurisdiction in England but not in Wales: the Welsh Government is expected to establish its own equivalent.
What constitutes a HRB in Wales?
As we reported earlier this year in our previous article on HRBs in Wales, the Welsh Government set out its proposed definition of HRBs in Wales during the design and construction phase in a consultation which ran from February to May 2023.
The definition has now been confirmed in The Building Safety (Description of Higher-Risk Building) (Design and Construction Phase) (Wales) Regulations 2023 (the "Higher-Risk Building Wales Regulations"). These were made by the Welsh Government on 15 November 2023, and come into force on 1 January 2024.
The Higher-Risk Building Wales Regulations confirm that a HRB in Wales during design and construction is any building that is at least 18 metres in height or has at least seven storeys and:
- also contains at least one residential unit; or
- is a hospital that has at least one bed intended for use by a person admitted to the premises for an overnight stay;
- is a care home; or
- is a children's home.
Key points to note
Number of residential units
The most notable difference in Wales is the requirement for a single residential unit – which can be contrasted with the HRB regime in England, which requires two or more residential units. The Welsh Government acknowledged this divergence in its consultation response but noted that it considers "the level of risk attached to one unit justifies their inclusion with the description."
The Welsh definition also expressly includes children's homes. However, although The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (which apply in England) do not expressly refer to children's homes, the Government has confirmed that they would fall within the same category as student accommodation and sheltered accommodation, i.e. they will fall under the higher-risk regime in England, provided they meet the residential unit, height and storeys threshold.
Exclusions
The proposed exclusions from the definition of a HRB in Wales are the same as those excluded from the definition of a HRB in England, namely buildings which are comprised entirely of:
- secure residential institutions (e.g. prisons);
- temporary leisure establishments (e.g. hotels); and
- military premises (e.g. military barracks).
The Welsh Government's consultation response acknowledges various concerns expressed by respondents regarding the exclusion of hotels. The concerns included the high density of occupation and unfamiliarity of guests with layouts and evacuation routes, which may render evacuation difficult.
In the absence of any further evidence that changes the risk profile for hotels, hotels remain excluded from the definition of HRBs. The consultation response observes, however, that: "during the first year of the implementation UK Government are undertaking a significant piece of research which will provide in depth evidence of risk profiles for a number of buildings including hotels." That review will no doubt form a part of the further review of the position regarding hotels in both England and Wales, in due course.
Definition of "building"
In England, the The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 include a definition of "building" which addresses both single structures as well as more complex structures including multiple "independent sections". The Higher-Risk Building Wales Regulations do not include a definition of "building".
Please get in touch if you would like us to advise on whether particular building structures may constitute a HRB.
If you have any queries on this article, please get in touch with Sue Ryan, Gemma Whittaker or Sean Garbutt.