Should your building register as higher-risk?

The Building Safety Regulator has established a new national register of existing higher-risk buildings in England, which opened on 6 April 2023.

A higher-risk building is defined as a building in England that:

1. is at least 18m in height or has at least seven storeys; and
2. contains at least two residential units.

This includes student accommodation but does not include a building comprised entirely of a secure residential unit, a hotel, military barracks, or a building that contains living accommodation provided by the Ministry of Defence or the other armed forces (as per the Higher-Risk Buildings [Descriptions and Supplementary Provisions] Regulations 2023).

Building height is measured from ground level to the floor of the top storey. It does not include any storeys below ground level. If the building is situated on ground which is not level, the height is measured from the ground level on the lowest side of the building to the floor of the top storey (excluding rooftop plant areas). If the top floor contains machinery or plants exclusively, this will not count as the top storey. Instead, the building height will be measured up to the floor of the storey below the plant storey or the machinery storey.

Under the Building Safety Act 2022 and the Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023, the principal accountable person (defined in the Building Safety Act 2022) is responsible for registering the building. The stakes are high, with it being an offence for the building to be occupied without being registered (for which the principal accountable person will be held liable).

Registration is through an online portal with a fee of £251 payable on application. As well as basic physical details about the building, and – if completed in 2023 or later – building control information, the portal requires details of the principal accountable person and other accountable persons.

A key step is to establish who the principal accountable person and accountable person(s) are. This can be a complicated analysis depending on the lease structure and should be established on a case-by-case basis. In high-level terms, an accountable person will be the entity that owns the common parts of the building (subject to certain exceptions), or who has responsibility for the repair of any part of the common parts of the building.

There are further administrative tasks once registration has been submitted

There may be more than one accountable person for a building, in which case the principal accountable person will be the accountable person who holds a legal estate in possession in the relevant parts of the structure and exterior of the building, or the entity that has a relevant repairing obligation in relation to the relevant parts of the structure and exterior of the building. Where there is only one accountable person, that entity will be the principal accountable person.

There are further administrative tasks once registration has been submitted. Within 28 days of registration, under the draft Higher-Risk Buildings (Key Building Information etc) Regulations 2023, principal accountable persons must also provide key building information to the Building Safety Regulator. This includes a range of information from smoke monitoring equipment to the percentage of materials used on the external walls; roof insulation; staircases and energy supply. Some of this information will not be readily accessible and may require surveys and some investigative works.

The register is currently open for existing buildings, with the intention being that it will remain so for the first six months. Then, the register will open for newly constructed buildings. Businesses with higher-risk buildings in the pipeline would be wise to ensure the information required is collated as and when it becomes available, and safely stored in preparation.

Guidance continues to be published by the government. Owners, FRI tenants and lenders are therefore encouraged to prepare for registration and submission of key building information and also to continue to monitor for further developments and guidance.

Megan Hancock is an associate and Lukas Rootman is a partner in CMS’s environment, health and safety team based in Sheffield