Building Safety Act 2022: new regulations define what constitutes a ‘higher-risk building’

Following a consultation last year, the government has made the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) (the Regulations) which will come into force in England on 6 April 2023.

The Regulations are important as, read alongside the Building Safety Act 2022 (the Act), they define what is a ‘higher-risk building’ (HRB) and so determine which buildings will be subject to the more stringent building safety regime established by the Act, once in force. Slightly different definitions of ‘higher-risk building’ apply for the design and construction phase, and the occupation phase of an HRB. 

Definition of HRBs during design and construction phase

Section 31 of the Act (as refined by the Regulations) defines an HRB during the design and construction phase - by inserting a new section 120D of the Building Act 1984 - as a building in England of at least eighteen metres in height or at least seven storeys and which:

a) contains at least two residential units
b) is a care home; 
c) is a hospital.

The definition expressly excludes secure residential institutions, hotels, military barracks and certain other military buildings.

Definition of HRBs during the occupation phase

Section 65 of the Act (as refined by the Regulations) defines an HRB during the occupation phase as a building that is at least eighteen metres in height or has at least seven storeys and contains at least two residential units.

The definition expressly excludes care homes, hospitals, secure residential institutions, hotels, military barracks and certain other military buildings. 

The government’s rationale for excluding these types of buildings from the definition is that they are already regulated as workplaces by the Regulatory Reform (Fire Safety) Order 2005 or by other regulations requiring fire safety measures to be in place. 

How to determine the height of a building for the purposes of the HRB provisions?

The Regulations set out the methodology for measuring a building to determine whether it is at least eighteen metres or at least seven storeys in height (and so whether it falls within the building safety regime for HRB’s). 

The height of a building is to be measured from ground level to the top of the floor surface of the top storey of the building.  

Any storey which is below ground level or which contains only roof-top machinery or plant is excluded.
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