In June 2022, we reported in detail on the changes being introduced by The Building etc. (Amendment) (England) Regulations 2022 (the "2022 Regulations") which have come into force on 1 December 2022.

We consider below one of the key changes implemented by the 2022 Regulations – the extension of the scope of the combustible materials ban to encompass a greater range of buildings – and what this means for hotel owners and developers in England.

Combustible materials ban – bringing hotels within the scope of the ban

The ban on combustible materials was introduced by the Building (Amendment) Regulations 2018 (the 2018 Regulations). The 2018 Regulations amended the Building Regulations 2010 by, in effect, banning the use of combustible materials in and on the external walls of certain buildings and in specified attachments to the external walls in "relevant buildings". The definition of "relevant buildings" for the purpose of the 2018 Regulations included new blocks of flats, hospitals, residential care homes and student accommodation over 18 metres in height, but excluded hostels, hotels or boarding houses.

However, following a review and consultation, the 2022 Regulations amend the definition of "relevant building" to bring hotels, hostels and boarding houses within the scope of the Combustible Materials Ban from which they were initially excluded. As a result, hotels over 18m will have to ensure that their external walls meet the same performance requirements (being A2-s1, d0 or better) as the higher risk buildings already covered by the ban.

This will, however, only apply to new hotels and existing hotels where building work or refurbishment is taking place on external walls. Applicable building works are those defined in 3(1) of the Building Regulations 2010, including erections and extensions and material alterations of existing buildings. Recladding works are very likely to fall within this definition.

Transitional period

Where parties have already deposited a building notice, initial notice, or full plans with a local authority and the proposed building work is started within six months, the project will be covered by the transitional period and will not be included in the category of hotels which need to adhere to the higher performance standards.

What about operational hotels?

Controversially – and somewhat surprisingly to many in the industry following the evidence gathered as part of the Government consultation carried out prior to their publication – the 2022 Regulations do not retrospectively require remedial work to be carried out in buildings where no building works are already happening, leaving a significant number of existing hotels in limbo, and leaving landlords and tenants of operational hotel buildings wondering whether they need to take action.

The Secondary Legislation Scrutiny Committee has commented on the uncertainty that existing hotels will face, and has been vocal about its disappointment that no indication is provided of when the policy approach will make safe the existing stock of hotels. This criticism may mean we could soon see the Government legislate to bring existing hotels within the scope of the ban.

Affected landlords and tenants of operational hotels should take this into consideration when faced with the option of complying with the 2022 Regulations despite them not being mandatory at this time.

Case study: responsibility for fire safety

In the case of a hotel, where the landlord may own the building but the tenant operating the hotel holds a lease, which may or may not include the demise of the exterior, who does the responsibility fall on to ensure fire safety?

The Regulatory Reform (Fire Safety) Order 2005 imposes numerous obligations on the "responsible person" of a building, including the duty to take general fire precautions and to make a suitable and sufficient assessment of risks to which relevant persons are exposed. "Responsible person" is broadly defined as the person who has control of the premises as occupier or otherwise – meaning it could arguably be either the landlord or the tenant of a building being operated as a hotel.

Further, and importantly, both landlords and tenants will have overarching duties under sections 2 and 3 of the Health & Safety at Work Act 1974 to ensure, so far as is reasonably practicable, that their employees and any non-employees affected by what they each do are not exposed to risk to their health and safety. Section 4(2) of the Health & Safety at Work Act 1974 also imposes a duty on each person with control of the premises to any extent, to take reasonable measures to ensure that the premises are safe and without risks to health. This means that any person with contractual or tenancy related obligations in relation to maintenance and repair, or any means of access to or egress from the premises, will be treated as persons who have control of those matters. Breach of this overarching duty can be a criminal offence subject to an unlimited, uninsured fine.

Erring on the side of caution, both parties may benefit from finding an agreeable compromise splitting costs and responsibilities of external wall surveys and possible remediation works, in order to avoid the uncertainty of having a court decide where responsibility lies.

As an existing hotel not within the scope of the 2022 Regulations, deciding whether or not to carry out works at the moment can arguably come down to a commercial decision to avoid reputational damage.

While not a legal point, there are potential negative reputational risks that may come with any refusal to cooperate with efforts to minimise the risk. Although placed in an ambivalent position, in an attempt to avoid industry scrutiny, responsible corporates should consider undertaking risk assessments in accordance with PAS 9980 (which does not officially extend to hotels at present but may be amended to do so in light of the 2022 Regulations), and remediating external walls in light of any fire risk concerns, given the risks to staff and guests in their hotels.

Hotels – other Building Safety points to be aware of

It is currently thought that hotels are unlikely to fall within the more stringent building control regulatory regime that will apply to "higher-risk buildings" when the secondary legislation implementing Part 3 of the Building Safety Act 2022 (BSA) is laid before Parliament. The definition of "higher-risk buildings" for the purposes of Part 3 has not yet been confirmed, but the recently closed consultation on the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations – to which the Government response is still awaited – indicated that temporary leisure establishments (e.g. hotels) are envisaged to be excluded from that definition.

Further, the term "higher-risk buildings" is separately defined in Part 4 of the BSA, which relates to the occupation of such buildings (defined in section 65 as buildings, in England, which are at least 18m in height or have at least seven storeys, and contain at least 2 residential units).

This can again be contrasted with the provisions of Part 5 of the BSA relating to the remediation of relevant defects – which apply to "relevant buildings". "Relevant buildings" for these purposes are defined in section 117 as self-contained buildings (or parts thereof) in England containing at least two dwellings and at least 11 metres high, or with at least five storeys. This definition applies, amongst other things, to the power to seek or make a "remediation order" under section 123 of the BSA – a mandatory order against landlords to remediate defective buildings. As things currently stand, the option to seek a s. 123 remediation order is not available to leaseholders of operational hotels buildings with unsafe cladding.

However, yet another contrast can be made with the recent Government proposals for the new Building Safety Levy as set out in its recently published consultation. As we reported in this article, the relevant section of the BSA applies yet another definition of "relevant building" in respect of the levy, which this time expressly includes temporary accommodation, for example, a hotel or hospital. The consultation lists the proposed exclusions from the levy but does not mention hotels: it therefore appears likely that new hotel builds will be subject to the levy.

In light of the above, and given the multitude of definitions in the various parts of the BSA and other relevant legislation, it remains important to check the provisions in question carefully to ensure that the impact and ramifications of the BSA, and the 2022 Regulations, in your sector are correctly understood.

If you have any questions about this article, please get in touch with Sue Ryan, Gemma Whittaker or Philip Baker.