The draft Building Safety Bill and Higher-risk buildings: Overview and Definitions

The draft Building Safety Bill was published on 20 July 2020, intending to ‘deliver the principles and recommendations for reform set out by Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety.’ The Impact Assessment states that the ‘overall effect of the Bill will be to deliver a stronger regulatory system and a stronger voice for residents which delivers better performance of all buildings across the built environment and better management of fire and structural safety risks in new and existing buildings.’ There’s a lot to digest: 119 clauses in five parts, plus eight schedules. Further, as Nearly Legal has pointed out, much of the detail on application will be contained in regulations which have yet to be produced and so there are many uncertainties. Although the direction of thinking for some of this is mapped out in the accompanying Explanatory Notes (EN) and Impact Assessment (IA), and referred to in these posts, it must be emphasised that it is only the legislation itself that matters legally: if the resulting statute, or regulations made under the statute, say ‘X’ it does not matter that the EN or IA suggest that X should be understood in a particular way. Therefore, what is in the regulations will be very important.

This is the first of three posts that focus on the provisions that relate to the occupation phase of residential buildings, contained in Part 4 of the Bill, and set out my initial, tentative, understandings of how they work. This first post covers the general framework and definitions; the following post looks at duties arising under the proposed legislation; and the final post looks at two specific issues (charges, and mixed-use buildings).

The broad outline has been known for some time. The idea is that the ‘golden thread’ of fire safety and building information that Hackitt spoke of will be digitally held to specific standards and carry through from the design and construction stages into the occupation and management phase. At the occupation stage there will be duties imposed on the ‘accountable person’ and ‘building safety manager’ to ensure that the building is safe and that any risks are thought about in advance and, where possible, steps are taken to reduce them. The Hackitt review noted potential complexities with how some of the practical measures would map onto the law and management of leasehold properties but eschewed detailed discussion. With publication of the Bill it is clear that implementation will be challenging, and several issues remain obscure, but also that there will be new and significant costs falling on leaseholders in higher-risk buildings.

The Bill does not say anything specific to the issue that has concerned many leaseholders: how will the cost of defects stemming from historical regulatory and build failures be met? As noted in a later post, the IA provides estimates of costs of bringing existing buildings up to standard. Further, the EN report a policy intention that ‘as far as possible leaseholders should not have to face unaffordable costs’ and that the Government is ‘conducting further work to explore appropriate funding models that would mitigate’ these, with the promise of an update before the final Bill is introduced. Nor does the Bill address the potential liability of those responsible for defects, or do anything to remove some of the key obstacles to bringing litigation to hold them to account (such as removing the common law bar to recovery of ‘pure economic loss’ for negligence based building defect actions or extending the inappropriately short limitation period under the Defective Premises Act 1972).

There are number of key terms that are crucial to the application of part 4.

In scope higher-risk buildings

The first is to explain those buildings in scope (i.e. covered by the regulations), referred to as ‘higher-risk’ buildings. Clause 19 simply refers to the ‘prescribed description’ in regulations yet to be seen, but the (initial) proposed use of this power is set out in para 228 EN. This explains that there will be both a height and use condition. A higher-risk building will be one in which the floor surface of the building’s top storey is 18 metres or more above ground level or where the building contains more than 6 storeys. It will also be a building that has two or more dwellings, or 2 or more rooms used for residential purposes, or student accommodation. A room will not count as being used for residential purposes if it is a room in a care home, prison, hotel, hospital, etc. The IA notes (paras 28, 78) that initially it is anticipated that there will be approximately 13,000 buildings in scope, with an estimated growth of 400-500 buildings per year.

The EN explain that other buildings may be brought within the definition in the future. The definition of building (cl 35(3)) is surprisingly broad: it includes ‘any … structure or erection of any kind’ and can also include movable objects, which means that even a boat or caravan could come within it. Examples of what might later come within scope given in the EN are purpose-built blocks of flats regardless of height (para 230), and office blocks which meet the trigger height threshold (para 248). The approach is based on levels of risk, yet events in the last 18 months have shown that buildings housing people who would not count under the EN approach as using rooms for residential purposes also present high risks to the occupiers (as shown in the Crewe care home fire), as well as buildings not meeting the height threshold (as with the Worcester Park fire, and the Bolton ‘Cube’ student block). Indeed, the benchmark spoken about now for many purposes is not 18m but 11m (based on Fire Service external access capability), see for example the ADB changes in May 2020.

Residents

Another key concept is the idea of ‘resident of a dwelling’. As mentioned in the next post, residents are subject to duties but are also owed duties by the accountable person, for example in relation to information that will help them feel safe. The definition of resident is almost non-existent, however. Cl 60 (3) simply says that a resident is a ‘person who lawfully resides there’. Other housing legislation tends to focus protection around the question of whether the property is an ‘only or principal home’ (for example, the Housing Act 1988). Hopefully ‘resident’ would be understood much more broadly in the context of higher-risk buildings: there are many classes of occupiers who will be lawfully present but for whom this will not be the main home (such as commuter using the flat as pied-à-terre), and, of course, occupancy can be fluctuating, intermittent or short term.

The Accountable Person

The accountable person (AP) will be responsible for meeting the various statutory obligations for occupied higher-risk buildings. The effect of the somewhat complex definition in cl 61 is that this will be the person who ‘holds a legal estate in possession in any part of the common parts’ (let’s call this person L) unless another person is under an obligation to repair or maintain common parts in long leases (of more than 21 years) to which L is lessor, in which case that other person will be the AP. The common parts are defined in cl 61(3) as meaning the ‘structure and exterior of the building’ except those included in the demise of a single dwelling or occupied for business purposes, or ‘any part of the building provided for the use, benefit and enjoyment of the residents of more than one dwelling’.

It is not, therefore, always the freeholder who will be the AP – it may be a long leaseholder (for example a housing association) or, seemingly, a management company under a tripartite lease. In the IA (para 61) it is said that for most buildings the AP is the ‘individual, partnership or corporate body with the legal right to receive funds through service charges or rent from leaseholders and tenants in the building’. However, the reference to legal responsibility for the upkeep and maintenance of the building, given complex ownership structures, means that the AP may include: ‘freeholders, the head lessees, management companies, commonhold associations or a (sic) Right to Manage Companies’.

Moving On…

These definitions are important in setting out how the new regime will work. Both APs and residents in higher-risk buildings are made subject to statutory duties. These are explored in the next post.

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How to cite this blog post (Harvard style) 

Bright, S. (2020). The draft Building Safety Bill and Higher-risk buildings: Overview and Definitions. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2020/08/draft-building-safety-bill-and-higher-risk-buildings-overview (Accessed [date])