Calling all high-rise developers, buyers, landlords and property managers – is your development safe?

If you work in the property industry then, unless you’ve been hiding under a rock, you’ll have heard of the Building Safety Act 2022 (BSA).

The BSA was put together after the Grenfell Tower tragedy in 2017 and aims to improve the safety and standards of all buildings. It introduces measures to assure the safety of higher–risk buildings. The BSA was passed in 2022 with the majority of measures originally coming into force in October 2023 and the remainder effective from 6 April 2024.

What is a higher-risk building?

A higher–risk building (HRB) is defined in the BSA as a building in England that is at least eighteen metres in height or has at least seven storeys and which has at least two residential units. The most common example is a high-rise block of flats. Some types of building are excluded, such as hospitals, care homes, secure residential institutions, hotels, and military barracks.

Mixed use buildings can also be HRBs, such as boarding school accommodation, university accommodation and shopping centres provided they meet the height or storeys threshold for a higher-risk building and, in the case of shopping centres, contain residential units. Complex buildings may require detailed analysis to determine whether they are HRBs. For example, even though hospitals and care homes are excluded, they are considered to be HRBs for the design and construction phases.

Roles introduced by the BSA

The BSA introduces the following two new roles:

• A Building Safety Regulator (BSR) whose role is to oversee the new building safety regimes for all HRBs, to raise safety standards of all buildings and to help professionals in design, construction and building control; and
• Accountable Persons (APs) who must demonstrate that they have taken all practicable measures to limit risks within the HRB. Generally, the AP will be the owner or tenant of the HRB with responsibility for repair of the common parts and structure (there might be more than one AP and, if so, one of them is designated the Principal AP).

Design / construction phase

The most notable measures introduced include a new duty holder regime, applicable to allconstruction projects. This is intended to ensure the competence within the construction industry of those who procure, plan and manage building work. HRBs are subject to significant new safety duties (which are placed on the client, designers and contractors) during the design and construction phase of a building. Additional requirements now include things like submitting a fire statement with a planning application, paying a building safety levy, obtaining building control approval and a completion certificate from the BSR and ensuring building safety generally is prioritised during the design and construction phases. Under the BSA, developers are now required to provide a minimum 15-year warranty for new-build homes and conversions.

Occupation Phase

Under the BSA, an HRB must be registered by the AP with the BSR before it can be legally occupied. It is now an offence for a building to be occupied but not registered and the deadline for registering existing occupied higher-risk buildings using the online service was 30 September 2023. Once registered, there are ongoing obligations on APs who are expected to conduct regular building safety assessments amongst other duties.

Leaseholder Protections

The BSA also introduced new leaseholder protections which aim to pass on the costs of remedying defective work, such as cladding, to those responsible for it.  As of 28 June 2022, qualifying leaseholders in England can no longer be charged for any costs related to the removal or remediation of cladding (see https://www.gov.uk/guidance/cladding-remediation#how-will-this-affect-you-the-leaseholder). The intention is that developers must pay to fix buildings they had a role in developing or refurbishing (even where they no longer own them) and that building owners who are associated with the developer must also pay to remediate historical safety defects.

The impact

All those developing HRBs will have to invest significant time and resources adapting to the stricter legislative requirements set out in the BSA. Adapting an existing scheme to meet the BSA requirements can be a highly technical, expensive and difficult task which will impact SME developers who do not have the same resources as the big corporate developers. Given the current challenging market conditions (higher borrowing, material and labour costs), the idea of having to spend extra time and effort factoring in the BSA will make schemes less profitable and potentially render some unviable.

If you have any queries about how the Building Safety Act 2022 may affect your project or any other commercial property matters, please contact our Commercial Real Estate team.