The Health and Safety Executive (HSE) has announced that only around 750 applications to register higher-risk buildings (HRBs) in England have been opened with the new Building Safety Regulator (BSR) since the registration process commenced in April 2023.
However, there are estimated to be around 12,500 HRBs in England which must, by law, be registered with the BSR by "the end of September 2023". Accordingly, the HSE is urging owners and managers of HRBs to "act now" to register their HRBs.
Background: the registration requirement
As we reported in our recent insight, the HSE announced in March 2023 that those responsible for occupied HRBs will have six months, from April to October 2023, to register their buildings with the BSR. The registration page can now be accessed via the Government website.
The BSR is an independent body, established by the Building Safety Act 2022 (BSA), to oversee both the safety and standard of all buildings and the new regulatory framework in respect of HRBs.
The BSA also established the concept of the "Accountable Person" (AP) and "Principal Accountable Person" (PAP), i.e. clearly defined dutyholders who can be held to account and will have statutory obligations for ensuring that fire and structural safety is being effectively managed in occupied HRBs.
Amongst other things, the duties of the PAP under the BSA include:
- applying for registration of existing occupied HRBs; and
- submitting 'key building information' in respect of those HRBs.
What are higher-risk buildings (HRBs) and when are they occupied?
As we reported in this insight, the definition of a HRB in England refers to a building that:
- is at least 18m in height, or has at least seven storeys; and
- contains at least two residential units.
During the design and construction phase only, care homes and hospitals are also included within the definition of HRBs.
A different HRBs definition of will apply in Wales.
The trigger for registration of existing buildings is when the HRB is "occupied" - this is a low threshold and applies as soon as more than one residential unit is occupied.
Key building information
There will also be a requirement to submit further "key building information" (KBI) within 28 days of an application for registration. Our insight "What Key Building Information Needs To Be Provided For Occupied Higher-Risk Buildings?" provides further detail on this.
The Government has also recently published guidance on KBI. We understand that the 28-day time limit for provision of KBI following registration will not be enforced until after 1 October 2023: the HSE press release states that the "KBI registration element will then be added to the HRB online registration portal later this summer, allowing sufficient time for owners and managers of buildings to submit their KBI by the end of September."
Commentary
From 1 October 2023, a PAP will be guilty of an offence if it allows a HRB that is not registered to be occupied. If convicted, the PAP could be subject to a fine or imprisonment or both. As we explain in more detail in our earlier alert on potential personal liability under the BSA, liability for breaches of the registration requirement will, in certain circumstances, be extended to individual directors of a body corporate.
Given that it is now only a matter of months until the October 2023 deadline for registration of occupied HRBs in England, AP / PAPs will need to start taking steps to register HRBs, as well as collating KBI, as soon as possible.
There are detailed rules governing who the AP / PAP should be. Identifying the AP / PAP is not always straightforward, particularly in ownership structures with multiple layers of leasehold tenures (perhaps with varying demises and/or repairing obligations), and/or split ownership between residential and commercial parts of a building, and/or where a management company is involved. Please get in touch if you would like us to advise who has responsibility for the AP / PAP role.
If you have any questions about this article, please get in touch with Sue Ryan, Gemma Whittaker, Sean Garbutt or Megan D'Souza-Mathew.