On 7 July, the Welsh Government laid The Building Safety (Wales) Bill (the Bill) before Senedd, together with its explanatory memorandum. The Bill is at the first stage of its passage through the Welsh Parliament. If passed, it will introduce a new building safety regime in Wales "focusing on the occupation and ongoing management… of multi-occupied residential buildings" in a similar, but not identical, way to Part 4 of the Building Safety Act 2022 (BSA) which applies in England.

As we highlight in this article, this Bill could lead to the creation of significant new statutory duties for "duty holders" in respect of "regulated buildings" in Wales with potential criminal liability for non-compliance.

The Bill does not focus on the design or construction phase, or the building control process for Higher-Risk Buildings ("HRBs") in Wales, which will be addressed in separate secondary legislation expected in autumn 2025 (as we describe in our previous insight: Welsh government proposes new building safety regime for higher risk buildings).

Below we set out our initial observations on the types of buildings that are proposed to be captured by the proposed legislation, the parties who may bear compliance responsibilities, and the key duties that could be introduced. Now is the time to start considering how the Bill might affect you.

Which buildings could the Bill apply to?

The proposed scope of the Bill is similar (but not identical) to the scope of Part 4 of the BSA.

Part 4 of the BSA applies (broadly) to certain residential buildings in England that are over 18 metres in height or at least seven storeys with two residential units (noting that there are some exceptions such as buildings which are solely hotels, care homes, secure residential institutions and military accommodation).

The Bill adopts a different definition of "regulated buildings" which (at a high level) are residential buildings of any height wholly or mainly in Wales that contain two or more residential units.

With some exceptions including hospitals and care homes, the Bill breaks that down into the following three categories:

  • Category 1 – at least 18 metres in height or has at least seven storeys;
  • Category 2 – less than 18 metres in height and has fewer than seven storeys, and is at least 11 metres in height or has at least five storeys;
  • Category 3 – less than 11 metres in height and has fewer than five storeys.

The Bill then sets out the duties applicable to each of those categories (more on this below) and, in a similar way to the approach taken by Part 4 of the BSA, provides guidance on interpreting key elements of the definition, including the meaning of "building" and "residential unit".

Key observation

Whilst there are strong parallels with Part 4 of the BSA - such as a focus on height and how buildings have been constructed (for example, whether there is more than one structure and/or more than one independent part of a structure) - the devil will be in the detail when considering whether a building you own or manage in Wales is caught by the Bill. Care will need to be taken to ensure portfolios including both English and Welsh properties are managed in a way which ensures compliance with the nuances of the two regimes.

Who could be the duty holders?

Like the BSA, the Bill creates new duty holder roles for buildings within its scope (as outlined above). Similar terminology has been proposed with references to the Accountable Person (AP) and Principal Accountable Person (PAP) and the definitions for those roles adopt a similar approach to the BSA, focusing on who holds a legal estate in possession and/or a relevant repairing obligation of the "common parts" and "external structure" of the relevant building.

The Bill proposes to place responsibility for the duties listed in the Bill with such duty holders so it will be critical to identify who they are.

The process for determining that is set out in sections 8-10 of the Bill and requires careful consideration. It will be important to keep in mind the impact that any secondary regulations and/or case law may have noting that the Bill, in a similar fashion to the BSA, provides for further provisions to be made and for regulations to amend sections such as the sections relating to the description of "building". Notably, the Bill also allows for escalation to the building safety authority and to the residential property tribunal.

Key observation

Those who are likely to be duty holders under the Bill should start to consider now how they need manage compliance with the proposed duties applicable to the building they are likely to be responsible for.

Breach of the statutory duties by the duty holders will attract criminal liability in certain circumstances. Individual criminal liability may also arise for "senior officers" within those entities if the corporate duty holder breaches its obligations.

What statutory duties could apply to each category of "regulated building"?

The specific requirements that are expected to apply as a result of the Bill vary depending on the category of regulated building. It will, of course, be important to track how the Bill develops but the proposed duties include the following:

Categories 1, 2 and 3:

Assessing and managing fire safety risks

The PAP for all occupied regulated buildings (i.e. category 1, 2 and 3) will be required to assess and manage fire safety risks, including ensuring that a fire risk assessment is carried out by a competent person. A "fire safety risk" is defined as "a risk to the safety of people in or about the building arising from the outbreak of fire in the building or the spread of fire in, to or from any part of the building."

APs for occupied regulated buildings must take "all reasonable steps" to prevent a fire risk materialising in relation to the person's part of the building and to reduce the severity of any incident that results from such a risk materialising.

The Bill will introduce a criminal offence for commissioning a fire risk assessment from a person that is not competent to undertake a fire risk assessment.

Categories 1 and 2:

Register of buildings

The Bill will create a new duty for the PAP to register category 1 and 2 buildings with the building safety authority (which is the relevant local authority in Wales). The register will contain the details of the PAP together with key information about the building. Occupying a building before it is registered and failing to notify the building safety authority of changes to registration information, will constitute criminal offences.

Assessing and managing structural safety risks

In addition, APs for occupied category 1 and 2 buildings will be required to assess and manage "structural safety risks" (i.e. a " a risk to the safety of people in or about the building arising from structural failure affecting any part of the building") for the parts of the building for which they are responsible.

They must also take "all reasonable steps" (which may include carrying out works and must be taken promptly) to prevent structural safety risks from materialising and to reduce the severity of any incidents that results from such a risk materialising.

Additional duties in respect of occupied category 1 buildings only:

There is an additional layer of duties that apply to occupied category 1 buildings, including that the PAP must:

  • Prepare a safety case report (and keep that report under review and revise where necessary)
  • Establish and operate an "occurrence reporting system".
  • Prepare and review a residents' engagement strategy for the building and give a copy to all residents and owners.
  • Apply to the building safety authority for a building certificate within 28 days of being directed to do so by the relevant authority.

Other duties:

Duties on residents and owners

The Bill will place duties on adult residents and owners of residential units in:
  • All occupied regulated buildings, including occupiers of relevant houses in multiple occupation (HMOs) not to do any act that creates a significant risk of a fire safety risk materialising, or that creates or increases the risk of fire spreading. This covers, e.g. installing non-fire resistant flat front doors, charging electric bikes in common parts or having a barbecue on a balcony.
  • Category 1 and 2 buildings not to do any act that creates a significant risk of a structural safety risk materialising in relation to the building.

Houses in multiple occupation

The Bill will also place some duties, including the performance of a HMO fire risk assessment, on landlords of certain HMOs (although they will not be subject to the wider duties such as registration).

Key observation

Whilst some of the themes here are familiar (such as registration), there are important differences between the Bill and the BSA (such as the differentiation in the Bill between "fire safety risk", "structural risk" and "building safety risk").

Identifying which duties apply to a building within the scope of the Bill will require careful consideration of the duties and there will be a need for a property specific as opposed to portfolio wide approach.

Who will regulate the application of the Bill in Wales?

Local authorities (LAs) will regulate the new occupation phase regime, including holding the register of in-scope buildings in Wales. LAs as well as fire safety authorities will have enforcement powers to investigate breaches and pursue prosecutions for non-compliance with the statutory duties. The specific penalties and enforcement procedures will be set out in secondary legislation.

LAs are also set to act as the building control authority for the design and construction of HRBs in Wales (in England, it is the Building Safety Regulator which performs both of these functions).

Key actions for duty holders:

  • Review your portfolio to determine whether you own or manage any buildings in Wales that are likely to fall within the three categories outlined above. Pay particular attention to portfolios that span multiple categories or include multiple properties across UK borders to ensure you're prepared to meet the distinct requirements of each scheme.
  • Identify the duty holders for any buildings that may be in scope. If you need help navigating this process, please reach out.
  • Plan for compliance with the proposed duties. Consider whether you'll need to:
    • Vary existing management agreements or service contracts;
    • appoint third-party support; and/or
    • develop or update your organisation's building safety compliance policies.

We will continue to monitor developments and issue further updates as the Bill progresses.

If you have any queries on this article, or would like further advice on building safety issues during occupation and management in Wales, please get in touch with Natalie Barton-Howes or Danielle Klepping.