High-rise residential buildings: registration and the Gateway regime

On 8 February 2024, the Health and Safety Executive published the register of “higher-risk buildings” held by the Building Safety Regulator (BSR) in England under the Building Safety Act 2022 (BSA 2022). The register can be viewed here.

The building safety regime established by the BSA 2022 requires higher-risk buildings to be registered with the BSR – existing higher-risk buildings which are (or could be) occupied must have been registered with the BSR by 1 October 2023. 

Any higher-risk buildings built after 1 October 2023 must have a relevant completion certificate or final notice, and they must be registered before residents can occupy them.

This article will look further at the continuing obligations surrounding registration in respect of all new higher-risk buildings including key information that must be provided and duties of “accountable persons”.

What are higher-risk buildings?

A “higher-risk building” is defined under the BSA as a building that:

1. is at least 18 metres in height or has at least seven storeys; and
2. contains at least two residential units – where the building is located in England. If the building is located in Wales, the residential unit requirement is lower at one.

The height requirement is based on measuring the height of the building from the ground floor on the lowest side of the building to the top floor surface of the highest occupied storey of the building. Any storey which contains only machine or plant is excluded from consideration.

There are some exclusions here, namely:

• care homes;
• hospitals;
• secure residential institutions;
• hotels; and
• military premises.

The rationale behind the exclusions is that they are already governed by alternative fire safety legislation. They are generally staffed 24 hours per day and have fire safety features such as multiple routes of escape, signage and emergency lighting.

The Government estimates that, on average, 490 new buildings meeting the definition of higher-risk building will be constructed each year and will therefore be subject to the new regime for design and construction.

Who must register the building and when?

The BSA 2022 prescribes that a Principal Accountable Person (PAP) must be identified.

The PAP is usually an organisation, like a commonhold association, local authority or social housing provider and will have primary responsibility for the internal and external structure and common parts of the higher-risk building. It also falls to the PAP to register a higher-risk building with the BSR.

For higher-risk buildings which are under construction or for proposed developments, it is crucial to note that:

1. the PAP must obtain completion certificates from the BSR under section 76 of the BSA 2022 before allowing occupation of the building (no leases can be completed in higher-risk buildings without a completion certificate issued by the BSR); and
2. the building cannot be occupied until the PAP has registered it with the BSR.

Essentially, the PAP must firstly ensure that the building is “signed off” under the new building control procedures – specifically by moving through the “Gateways” under the BSA 2022. Under the new regime, Gateway 2 takes place at the current deposit of plans stage before building work starts, whereas Gateway 3 takes place at the current completion certificate stage when building work is complete.

At Gateway 3, the duty holder will make a completion certificate application reflecting the “as-built” building. The BSR will assess the application, carry out a final inspection of the building work and, if satisfied, issue a completion certificate as evidence that the building work complies with all applicable building regulations’ requirements.

The PAP will then be able to register the building for occupation once it has the necessary completion certificate.

It is not yet clear how the market will treat practical completion under building contracts and under the new Gateway regime. An application for Gateway 3 approval can be made when “building work” relating to the higher-risk building has been completed. It is therefore likely that an application can be made before:

• an entire project is complete; and
• completion of all of the internal fitting out work (such as painting or flooring).

Exactly when an application under the Gateway regime can be made will therefore need to be considered on a case-by-case basis.

Following submission of an application, the time limit for determining a completion certificate application will be eight weeks. It is envisioned that information could be shared with the BSR in advance of completion of the development to help facilitate a swift decision. Staying close to the regulator throughout the project will therefore be important and could assist an applicant’s passage through the Gateway 3 process.

Nonetheless, this still leaves many queries regarding the definition of practical completion under a building contract (as well as who will be responsible if Gateway 3 is not successfully passed).

The registration and occupation provisions are strict requirements, and non-compliance by the PAP is a criminal offence, which could result in a fine and potentially, imprisonment.

What information is required when registering the building?

• The number of floors at or above ground level. Floors from ground level to the top floor should be counted, whether they have residential units or not. Mezzanine floors that are 50% or less than the area of any other floors, floors below ground level, and the roof should not be counted.
• The height of the building (in metres up to two decimal places), measuring from the ground to the top floor (disregarding the roof).
• The number of residential units – i.e. a place where someone can live, like a flat, apartment, maisonette or a room in student accommodation.
• The year the building was originally built – for buildings completed in 2023 or later, also provide the name of the building control body that issued the completion certificate or final notice and the certificate or notice number.
• The address or address(es) of the building.
• Details of the PAP (and any other “accountable persons”).

Once an application is made to the BSR, the PAP will then have a further 28 days to provide more detailed information about the structure and fire safety of the building. The key building information, which must be provided in electronic form, includes details about the use of the building, materials used in the external walls, insulation and structure of the building and information relating to fire safety such as the number of staircases, type of evacuation strategy and location of fire and smoke control equipment.

Comment

The requirement to ensure that all new higher-risk buildings are registered with the BSR forms a clear part of the Government’s aim that those parties responsible for good building stewardship meet applicable building regulations’ requirements before starting building work and before occupation begins.

Though outwardly a regulatory and administrative burden, the need to gather the requisite information for registration will help PAPs to assess the building’s risks as part of a “safety case report” – these will be called in by the BSR every five years as part of their “building assessment certificate” process from April 2024.

The PAP must apply for a building assessment certificate for a registered higher-risk building within 28 days of being requested to do so by the BSR. The BSR will issue the building assessment certificate if it is satisfied that the PAP (and any other accountable persons) are complying with all relevant duties.

Priority is likely to be given to higher-risk buildings deemed to present the greatest danger with all higher-risk buildings to then be re-assessed periodically. Previous guidance (since withdrawn) suggested the BSR will call in new buildings for assessment for the first time within six months of occupation. Though it is not yet clear whether this timeframe will still apply with respect to new buildings, the information given on registration with the BSR will help when assessing a building’s risks as part of the “safety case”.

As above, it remains to be seen how the industry deals with the inevitable pause from practical completion of the works under the building contract versus the Gateway 3 completion certificate application process. Who takes the risk of the completion certificate being delayed or not granted and any resulting delays to occupation? Who is going to be responsible for security of the building in the interim? How will this affect the insurance of the building? Will obtaining the Gateway 3 completion certificates become as common a requirement of practical completion as obtaining Building Control certificates currently are?

We shall continue to monitor this area and will report back as this new obligation takes shape.

This article was co-authored by trainee solicitor, Joseph Martin.