The Building Safety Act 2022: How will it impact social infrastructure projects?

The Building Safety Act 2022 (BSA), enacted in April, is possibly the most significant piece of legislation regarding the built environment to be introduced in recent decades.

Previous articles we have published looked at the history of the BSA, and some of its key provisions (and can be accessed here and here).

Given the tragic history that shaped the development of the BSA, discussions around the impact of the legislation have focussed on its application to residential buildings. Here we will focus on the application of the BSA to social infrastructure (including education, healthcare and defence) more widely.

What is a higher-risk building?

The BSA introduces the concept of “higher-risk buildings”, to which more stringent rules and requirements will apply in respect of both design and construction of new buildings and the occupation of existing higher-risk buildings. What amounts to a higher-risk building is yet to be finalised - the precise definitions (of which there are two) are due to be set out in secondary legislation that has not yet been published but which is expected to provide specific guidance on categories of buildings that are or are not “higher risk”.

As it stands, higher-risk buildings are defined under the BSA as buildings that are at least 18 metres in height or have at least 7 storeys and contain at least 2 residential units. This clearly captures, for example, social housing facilities over 18 metres or 7 storeys in height but what about military accommodation and healthcare buildings (such as hospitals or care homes)?

The question is further complicated by the fact that what amounts to a higher-risk building during (i) the design and construction phase and (ii) during occupation of the building differs.

Government consultation on secondary legislation concerning higher-risk buildings

On 9 June 2022, the UK Government released a consultation paper on the proposed definitions of higher-risk buildings that would apply to the design and construction phase and the operational phase. A link to the consultation is available here. The consultation closed on 21 July 2022 and we await the results. It did however give an indication of the Government’s direction of travel, and key considerations based on the current proposals are discussed below.

During design & construction

The current proposal is to include hospitals, care homes and student accommodation where amenities are shared (and which meet the height requirements) in the definition of higher risk buildings during the design and construction phase, to ensure that high-rise buildings potentially occupied by those unable to evacuate quickly, or without assistance, comply with the new regime.

The consultation also clarified that the intention is for the secondary legislation to not apply to secure residential institutions (e.g. prisons, young offenders’ institutions and detention centres), temporary leisure establishments (e.g. hotels and hostels), and military premises (e.g. military barracks).

Consequently, those involved in the design and construction of care homes, hospitals and student accommodation that meet the height threshold will need to be aware of, and comply with, the new regime. For example, the new building control regime for higher-risk buildings (also known as Gateway 2), requires developers to obtain building control approval before starting building work on higher-risk buildings. Construction will not be able to start unless the new Building Safety Regulator is satisfied that the proposed design meets the functional requirements of the Building Regulations. In the context of operational healthcare and student accommodation projects (including PPP/PFI projects in their operational phase), this may result in variation works to existing facilities being caught by the new regime. Investors, asset managers and service providers will need to consider the cost and time implications for any capex projects falling within the new regime. Particular care will need to be given to such projects that are due to start between April and October 2023, which is when the building control changes are expected to come into force. Current proposals are for a six month transitional period, whereby if an initial notice has been submitted or full plans deposited by the date the new regime comes into play and work commences within six months from the date the new regime comes into force, the building will remain subject to the current building control regime.

During occupation

The consultation proposed that care homes, hospitals, secure residential institutions, temporary leisure establishments and military premises are all excluded from the definition of higher-risk buildings for the in-occupation regime under Part 4 of the BSA.

If the secondary legislation adopts this approach, from a social infrastructure perspective it is likely that only social housing developments (meeting the height threshold)  will be captured by the in-occupation requirements. Any such buildings would, for example, require that an Accountable Person(s) is identified and that building safety risks are assessed and managed. These additional requirements will impact building owners, management companies and individuals involved in the day-to-day management of the relevant building. We discuss identifying the Accountable Person(s) and their duties in more detail in here.

Practical considerations

The BSA and consultations emphasise that collective responsibility, information sharing and record keeping will be prioritised for higher-risk buildings. For any PPP/PFI facilities, this may provide an early opportunity to collate materials and information that will be valuable upon hand back of the facility at expiry of the project term.

If your organisation would like advice on steps to take in order to comply with the range of new obligations under the BSA, then please contact us via the details below.