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Building Safety Bill - What is a "Higher Risk Building"?

  • United Kingdom
  • Real estate dispute resolution

08-02-2022

The Building Safety Bill was presented to parliament in July 2021. It is anticipated that it will become law in early 2022, with most of its provisions coming into force in the first 12 months.

Many prudent Employers and Contractors are already making (or at least considering) early provisions in their contracts to cater for the changes that this new legislation will bring about, such as regulatory compliance with the new Gateway Regime, ensuring that duty holders comply with their statutory obligations, and that the golden thread of information relating to fire safety is created, held and maintained throughout the construction and occupation of the building. However the relevance of these provisions depends on whether the contract is for a “higher risk building”. Although there is a definition the Bill, much of the detail is included in other regulations which also require consideration.

The Bill states that a “higher risk building” is a building in England that “(i) is at least 18 metres in height or has at least 7 storeys; and (ii) contains at least 2 residential units” 6. The terms within this definition need some further explanation. It is later specified that a “residential unit” is “(a) a dwelling; or (b) any other unit of living accommodation7. There is sometimes doubt over what constitutes a “dwelling”, however the explanatory notes to the Bill stipulate that a residential unit could include any residential unit with a residential purpose where basic amenities such as cooking facilities, a toilet and personal washing facilities are shared with others in the building. “Building” has also been defined as “any permanent or temporary building, and, unless the context otherwise requires, it includes any other structure or erection of whatever kind or nature (whether permanent or temporary)8. A reference to a building includes reference to a part of a building.

So far, so good. However it is clear that there are many other variables too. Under the Bill the Secretary of State has the ability to supplement or amend this definition through the provision of Regulations9. This means that further details and exclusions are covered elsewhere.
When the Bill was first published it was noted that it could potentially have very widespread implications across a number of different sectors and industries. However, draft regulations 10 were subsequently issued which set out that the following types of premises are excluded from the definition of “higher risk building”: care homes11 ; hospitals, secure residential institutions (such as a prison, young offenders institution, detention centre etc), temporary leisure establishments (such as a hotel or anywhere that provides overnight accommodation for leisure); and military premises (such as military barracks, or any building occupied solely for the purposes of the armed forces or any visiting force). Despite the wording in the draft regulations12, government guidance has subsequently stated that the requirements of the Building Safety Bill will apply to care homes and hospitals meeting the same 18m height threshold during the design and construction phase, but not during occupation13

Whilst these exclusions and limitations restrict the scope of the Bill, it nevertheless brings into question how fire safety and cladding issues are to be addressed for these types of building. Where the statutory provisions of the Bill do not apply, developers may consider it valuable to add in some contractual measures following the Bill’s example as a means of best practice.

There was also some initial doubt about how the definitions in the Bill would be interpreted. For example, how are storeys to be measured, does rooftop plant and machinery count within a building’s height, and how should mezzanine floors be treated? 

Again, the supplementary regulations provide the answers. The height of the building is determined by measuring from ground level to the top floor surface of the top floor building (ignoring any storey which is roof top machinery or plant area)14. It has also been clarified in the regulations15 that when calculating storeys of a building, any storeys below ground level are ignored (i.e. that have a celling below ground level), and a mezzanine is treated as a storey if its internal floor area is at least 50% of the internal floor area of the largest storey in the building which is not below ground level.

Although the Building Safety Bill has not yet become law, it is worth considering now whether or not its provisions may apply to your contracts. A full awareness of what constitutes a “higher risk building” is essential for all contracting parties, so that they know the full extent of their duties and mandatory requirements under the new legislation.