Building safety: Transitional arrangements for existing higher-risk buildings

Even for the most experienced building safety practitioners, the Building Safety Bill is a long and formidable read. Responding to this, the Government has released several factsheets on the Bill, breaking down each topic covered.

In our forthcoming series of ebriefings, Anthony Collins Solicitors will be reviewing the factsheets and outlining how they can assist providers to prepare for the new building safety regime.

The first factsheet we have chosen to review relates to the transitional arrangements for Building Assessment Certificates for existing buildings.

The scope of the occupation stage of the new higher-risk building regime covers buildings of at least 18 metres or a minimum of seven storeys in height, with at least two residential units. The factsheet estimates that 12,500 existing buildings fall within this scope. Existing higher-risk buildings will need to be registered with the Building Safety Regulator (BSR) after a transition period, which is expected to be between 12 and 18 months after the Bill receives Royal Assent. 

After a building has been registered, BSR will periodically conduct building assessments to assess Accountable Persons’ performance. BSR has the power through a ‘call-in notification’ to tell the Principal Accountable Person (PAP) when they need to apply for the Building Assessment Certificate. The PAP must apply for the certificate within 28 days of the notification being given.

It is expected that BSR will not start calling in applications for Building Assessment Certificates for existing higher-risk buildings for a further period of between 6 and 12 months after their registration. BSR also anticipates that it will take around five years to assess the performance of the Accountable Persons for all existing buildings for the first time and any new buildings that come into the scope under the Bill. The factsheet makes it clear that the process for completing assessments of existing buildings within the scope of the Bill and issuing Building Assessment Certificates will be as follows.

• Existing buildings will be put into ‘tranches’ for their first assessment. It appears that the grouping of buildings will be based on a number of grounds (notably, height and the number of residential units). It does appear that particular buildings could be prioritised and assessed outside of a tranche – for example, if it has un-remediated aluminium composite material cladding, or there are concerns about the Accountable Person’s management of the building safety risks.
• Assessments within tranches will be prioritised using a hazard-based approach (i.e., the higher the building’s potential to cause harm and the starker the potential consequences of a serious fire or structural failure occurring at the building, the more likely the assessment will be earlier in the tranche). The hazard-based prioritisation criteria that will be used as part of the approach are currently being developed. At this stage, it appears the factors considered as part of the approach will include the presence of a single staircase and no sprinklers, previous refurbishments that crossed multiple floors, the fact the building is mixed-use and the type of external wall system.

BSR will publish its indicative tranches, setting out when buildings might be assessed for the first time, during the passage of the Bill through Parliament. These indicative tranches will be updated over time to take account of updated building information, operational considerations and the results of stakeholder consultations. BSR’s final approach to tranching will be set out in its strategic plan that will be subject to consultation and published after the Bill achieves Royal Assent (which will likely occur around April to July 2022).

So, what have we learnt from the factsheet? 

Change takes time and the implementation of the Building Safety Bill is unlikely to be quick. That being said, those with duties under the Bill / Act must ensure they are in a position to comply with those duties once they come into force. This is likely to require significant action in advance from duty holders, including planning, recruitment, the appointment of sub-contractors, administration, the dedication of resources and communication with tenants. Also, even if the Building Assessment Certificate process takes five years to complete, Accountable Persons will be expected to uphold their duties and proactively assess and manage building safety risks from the moment the regime comes into force.

There has been speculation about whether the scope of the Bill might be widened, for example, to include buildings at a lower height or used to house those with a higher level of vulnerability. However, given the long timetable that is predicted before BSR can review all buildings presently within scope, we predict any significant widening of the scope of the regime is unlikely to take place at least in the short term.

For more information

If you would like more information about transitional arrangements for existing higher-risk buildings, please contact Lorna Kenyon.

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