Legislation, Regulations & Guidance
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The contradiction between current legislation and guidance on what constitutes a higher-risk building was highlighted by the First-tier Tribunal (FTT) decision in Smoke House & Curing House, 18 Remus Road, London E3 2NF (LON/00BG/HYI/2023/0024). In Smoke House, the FTT applied the HRB Regulations 2023, finding that a roof garden was a storey, despite it being an open rooftop which was not fully enclosed. The FTT noted that the guidance appeared to go beyond the wording of the legislation and was not a reliable interpretation of the law.
In response, the government has added a note to the guidance stating that it and the Building Safety Regulator are considering the view of the FTT in Smoke House but "until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance". This uncertainty leaves practitioners in a difficult position when advising on buildings where the inclusion of a roof garden may be the deciding factor in whether the building is an HRB.
The definitions of HRB's in the BSA 2022 are supplemented by the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) (HRB Regulations 2023), which provide that a storey does not count towards the seven storeys if the storey is a rooftop plant or machinery area or consists exclusively of roof-top machinery or plant room (regulation 6, HRB Regulations 2023).
The government's guidance on what constitutes a higher-risk building is set out in three separate documents, housed on a collection page (see Guidance on the criteria for being a higher-risk building). The guidance states (emphasis added):
"A storey must be fully enclosed to be considered a storey. The roof of a building should not be counted as a storey. Open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height."
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HSE’s second building safety conference, which took place in May in Birmingham was attended by over 1,400 industry leaders, regulators and resident representatives.
The conference featured almost 40 sessions and panel discussions providing detailed information on a breadth of topics including:
the building control application process for high-rise residential buildings
ways of working for the building control profession
more information on how to build a safety case and a resident engagement planIf you missed the opportunity to attend the BSR conference in May, you can watch back all of the key note speeches and sessions on HSE’s Youtube channel.
Amongst the many topics covered, sessions include updates on : Building Control Assessment process, Resident Engagement, Building Control profession, the Golden Thread, and Planning Gateways.
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The BSR has today published a ‘Safety Case Toolkit’ guide which is accessible here.
The information within the guide is aimed at accountable persons (defined under section 84 of the Building Safety Act 2022) to assist them in preparing a safety case report. A safety case report must demonstrate that all reasonable steps have been taken to prevent building safety risks happening and reduce the seriousness if they do.
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The government has made and laid before Parliament the Building (Registered Building Control Approvers etc) (England) Regulations 2024 (SI 2024/110), which come into force on 6 April 2024, in England only.
The regulations set out the procedures that apply when a registered building control approver supervises work under the building regulations in England.
From 6 April, the role of the approved inspector under the building regulations will be replaced by that of the registered building control approver (except in relation to some transitional projects).
These new regulations effectively perform the same function for a registered building control approver as the Building (Approved Inspectors etc) Regulations 2010 (SI 2010/2215) performed for an approved inspector. As such, practitioners will recognise much of their structure and content.
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The Health and Safety Executive (HSE), under whose auspices the BSR operates, has now published three resources to assist with mandatory occurrence reporting (MOR).
The Building Safety Act 2022 introduced a stricter safety regime for higher-risk buildings (HRBs), encompassing work to an existing HRB, work to an existing building that coverts it into an HRB or the construction of an entirely new HRB. Among other things, this requires the principal designer and principal contractor on an HRB construction project to operate a mandatory occurrence reporting system during the works and to report any "safety occurrence" to the Building Safety Regulator (BSR).
A safety occurrence is an aspect of design or an incident or situation relating to the structural integrity or fire safety of an HRB that would be likely, unless remedied, to present the risk of a significant number of deaths, or serious injury to a significant number of people. Outside the construction phase, an accountable person or principal accountable person must submit a mandatory occurrence notice in relation to those parts of an HRB for which it is responsible.
The new MOR system guidance resources can be accessed below:
- Operating a mandatory occurrence reporting system (31 January 2024), which provides guidance on setting up and maintaining a mandatory occurrence reporting system.
- Submitting mandatory occurrence notices and reports (31 January 2024), which provides guidance on reporting incidents.
- Submit a mandatory occurrence notice and report (31 January 2024), which provides a service for submitting a mandatory occurrence notice.