By way of update to our previous article and client briefing, The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 are now in force and the deadline to register higher-risk buildings (“HRB”) is fast approaching, with only 2 weeks left before the 30 September 2023 deadline.
What is a higher-risk building?
A higher-risk building is a building in England that:
- Is at least 18 meters in height or has at least 7 storeys; and
- Contains at lease 2 residential units.
This includes student accommodation. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 provide further clarification and confirm that a higher-risk building does not include a building comprised entirely of a secure residential unit, a hotel, military barracks, or a building that contains living accommodation provided by the Ministry of Defence or the forces.
Who can register the building?
Registration must be completed by the Principal Accountable Person (“PAP”) who is typically a housing association, local authority, or company. Determining who the PAP is can be complex and could be the freeholder, landlord or tenant. The definition within the Building Safety Act (“BSA”) needs to be applied. The PAP is not necessarily always the freeholder, it should be established on a case-by-case basis.
Someone from the organisation must be appointed as the single point of contact. The individual will discuss building safety issues with the Building Safety Regulator (“BSR”) where required and have authority relating to the safety of the building. However, the organisation will remain the PAP and remain liable for any breach of the PAP obligations.
The PAP can authorise someone else to register the building for them (i.e., a managing agent or legal representative) and to be the single point of contact. However, the authorisation must be in writing via an email, letter or written contract. Such authorisation does not make that person the PAP.
Where there is a dispute regarding who the PAP is, the BSA outlines that an application can be made to the First-Tier Tribunal for determination. The BSR has stated that where an application for determination has been made, registration is not required until the outcome of the hearing. This should however be communicated to the BSA and written confirmation requested from the BSR that matters are stayed until the outcome of the determination.
Registering the building
A HRB that residents occupy or could occupy by 30 September 2023 must be registered. It is an offence to allow residents to occupy an unregistered HRB after this date. New HRBs completed after 1 October 2023 must have a relevant completion certificate or final notice and must be registered prior to occupation.
Applications are made online and can be accessed here. Two or more structures can be registered as a single building when they are connected by either:
- a single walkway, lobby or basement, that contains a residential unit; or
- an internal wall containing normal use doors.
Information you will need
Our previous article outlines the information you will need to register. The PAP address must be in England or Wales otherwise it is not compliant, and the building will not be registered. However, for those PAPs based outside of England and Wales, ‘a care of address’ based in England or Wales would satisfy the requirement.Our articles also outlines that once the PAP has submitted an application to register a HRB, the PAP has 28 days to submit the key building information (“KBI”), as set out in the Higher-Risk Buildings (Key Information etc.) (England) Regulations 2023.
While it is a criminal offence to fail to register a HRB, the BSR has confirmed it will not be a criminal offence to fail to submit KBI within the 28-day timeframe. However, a compliance notice can be issued compelling a PAP to submit the key building information, and failure to comply with the notice would constitute a criminal offence.
The BSR has confirmed that invasive surveys should not be required to provide the KBI and that where information is unknown, the form will often provide an option to respond “don’t know”. If information becomes available which would change the KBI after is has been submitted, this should be provided to the BSR as soon as possible.
Currently the online registration portal does not contain an option to amend an application. However, the BSR has confirmed this functionality is in development and will be available soon. In the meantime, any additional information is to be submitted directly to the BSR via their contact page.
Comment
The BSR estimated back in May 2023 that there were 12,500 HRBs, of which only 750 had been registered at the time. More HRBs will have been registered in the meantime, but there will be a number that are unregistered. If your property portfolio contains HRBs, take the time to establish who the PAP is as soon as possible and ensure the PAP registers the building(s) without delay.
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