The Building Safety Act 2022 and non-residential buildings

The Building Safety Act 2022 is one of the most important pieces of legislation affecting the UK construction industry since Part II of the Housing Grants, Construction and Regeneration Act 1996, and may well be even more significant given its effect on the life cycle of all buildings. The Act implements the recommendations of the Independent Review of Building Regulations and Fire Safety by Dame Judith Hackitt, who was tasked with reviewing the prevailing building safety regime following the Grenfell Tower disaster. Her interim report, published in December 2017, identified very quickly that “the whole system of regulation, covering what is written down and the way in which it is enacted in practice, is not fit for purpose, leaving room for those who want to take shortcuts to do so.” Unsurprisingly, therefore, the Building Safety Act 2022 affects non-residential buildings as well, making wholesale changes to the building safety and standards regime.

The need for change in non-residential sectors has become obvious through a number of high-profile cases. The trauma unit at the John Radcliffe hospital in Oxford was closed for years in order to allow for the removal of cladding and other fire safety works. Other cases in Northumbria and Scotland have also been reported. At the same time, fire safety cases involving hotels have been less prominent but also problematic for the construction industry.

Much of the Building Safety Act’s impact will come through secondary legislation. While it is currently not possible to give a definitive statement of the overall scheme, the likely shape of that secondary legislation has been revealed through government factsheets and previously published draft regulations.

Different definitions of 'higher-risk buildings'

The focus of the Building Safety Act 2022 is on ‘higher-risk buildings’, which come under a more stringent regulatory regime. This term is separately defined for the purposes of Part 4, which deals with occupied residential buildings (as well as Part 2, by virtue of section 4(4)) and Part 3, which makes a raft of changes to the Building Act 1984 and its regulatory regime. Part 5, on the other hand, uses the term ‘relevant building’ (section 117). It is Part 3 which will directly impact on non-residential higher-risk buildings.

Part 3 of the Building Safety Act introduces through section 31 a new section 120D into the Building Act 1984. This new section does not limit the term ‘higher-risk building’ to residential occupied buildings (although it does set a minimum height of 18m or at least 7 storeys), but provides for the term to be refined by way of a statutory instrument. The draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations, which had been published in draft with the Bill, provided that care homes and hospitals would be classed higher-risk buildings, but hotels, secure residential institutions and military premises would not. These draft Regulations were, however, apparently withdrawn in mid-May 2022. The government factsheet that remains still includes reference to hospitals and care homes, but does not refer to the previous exclusion of hotels (or ‘temporary leisure establishments’ as they were styled).

New building control regime

New ‘higher-risk buildings’ for the purpose of section 120D of the Building Act 1984 will face a more onerous building control regime. The government intends to implement new ‘gateways’ requirements at three key stages in their design and construction through secondary legislation within the framework put in place by the Building Safety Act 2022. Gateway one occurs at the planning stage, having been brought into force already by the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, and in particular, article 4. Currently limited to higher-risk buildings containing two or more dwellings or educational accommodation, it imposes a requirement to submit a fire statement form as part of the planning application form.

It is intended that gateway two will replace the current building control deposit of plans stage for higher-risk buildings before the construction phase starts. Building control approval must be obtained from the new Building Safety Regulator before relevant building work starts. By a new section 91ZA of the Building Act 1984, it will be the new Building Safety Regulator who will be the building control body for all higher-risk buildings, removing this function from the current regime of Building Control approved inspectors. The new body will be part of the Health and Safety Executive. It is unclear at the moment how well funded or responsive the new body will be when discharging its building control functions. The government factsheet for gateways two and three, however, envisages that there will be delays imposed on developers to allow for any changes to be “thoroughly considered with proportionate regulatory oversight”. It is possible that standard form construction contracts (or at least the exercise of their contractual programme management functions) will need to be reviewed to take into account variations or changes to the design or specification of new buildings.

Gateway three will occur at the practical completion or final certificate stage, when the building work is complete. One important part of this stage will be a requirement to hand over to the building owner plans and documents that reflect the ‘as built’ building. This is one aspect of the implementation of the Hackitt Report’s ‘golden thread’ of information, which will allow building safety risks to be appropriately managed. There are tangential references to this new requirement through the Building Safety Act, such as in a new paragraph 1D to Schedule 1 of the Building Act 1984 (which makes provision for building regulations to create and keep information or documents in accordance with prescribed standards and to ensure that they are kept up to date), but it is necessary to look elsewhere to see how it is likely to work in practice.

The golden thread of building information

On 21 July 2021, the Building Regulations Advisory committee published its golden thread report. It notes that the obligation to retain this information, as created and defined in secondary legislation, will be subject to further guidance as to implementation. The report recommends that, “The golden thread information should be stored as structured digital information”, which will provide a “single source of truth”. The report recognises that the UK BIM Framework can support the implementation of the golden thread (where 'BIM' stands for 'Building Information Modelling', which can be defined as the “use of a shared digital representation of a built asset to facilitate design, construction and operation processes to form a reliable basis for decisions”). 

It is likely that the golden thread requirements will drive the adoption of BIM, not only in the UK construction industry but in post-construction facilities management. The land law implications of the regulatory requirement to maintain a digital repository of building information for the decades of occupied use of a built asset have yet to be fully considered.

Construction products

One of the less publicised aspects of the Building Safety Act 2022 is its impact on construction products and manufacturers. It will reform the regulatory and liability regime for construction products, creating new regulatory powers. Schedule 11 of the Building Safety Act 2022, which sets out the statutory framework for the new construction products regulations, extends to all construction products, and not simply those used in the construction of ‘higher-risk’ or residential buildings. The 2022 Act gives the government powers to create new civil penalties and criminal offences for the breach of the new regulations, together with a new national regulator for construction products sitting with the Office for Product Safety and Standards.

The broader impact of the Building Safety Act 2022

Beyond the specific requirements created by the 2022 Act, the new regulatory regime will have an overall impact on non-residential buildings. The Building Safety Regulator is tasked by section 3(1) to secure the safety of people in or about, and the overall standard, of buildings: this is not limited to higher-risk buildings. The proposed building industry scheme that is provided for by section 126 of the 2022 Act is likewise extended to buildings in general. Introduced late in the passage of the Bill through amendments in the House of Lords, the Explanatory Notes explain that they give the Secretary of State wide-ranging powers to establish membership of a scheme (or schemes). By sections 128 and 129, these regulations might limit the development of certain buildings to scheme members. The details of the anticipated scheme are, however, unknown. These provisions represent one part of a larger plan to improve the entire safety culture in construction as envisaged in the Hackitt Report.

Broad but uncertain implications

The Building Safety Act 2022’s impact on the design and construction of higher-risk buildings, through changes to the building control regime, will directly extend to hospitals and care homes. It is unlikely, but not impossible, that it will also be extended to hotels. Part 3 also makes large changes to the overall Building Act 1984 and Building Regulations regime that will undoubtedly change the way in which building standards and compliance are dealt with.

There is more, however, to the new regulatory regime than enhancements to the safety requirements for higher-risk buildings. Whatever building is designed and constructed, the Building Safety Act 2022 will make significant changes to its development and in-service use.