The Building Safety Act 2022 and its associated statutory instruments are an extremely complex and detailed set of laws and regulations which govern most building work in England. As the new regime is put into practice, it has become apparent that some of the provisions are not working as intended. The government is now beginning a process of consultation to try to make it run more smoothly.
Background
The Act requires the prior approval of the Building Safety Regulator to works to and within existing Higher Risk Buildings. The Building Safety Regulator has, however, received many more applications than it was expecting in relation to such building works, which has led to delays.
Higher Risk Buildings need to be regularly repaired, maintained and upgraded, and residents often want to remodel or update their individual properties. Most of these works require approval from the Building Safety Regulator before they can take place. A Higher Risk Building may also need emergency repairs to ensure it is in a safe condition.
The interface between repair, maintenance and upgrading works, emergency works and the requirements of the Building Safety Act has caused much confusion and created practical problems.
In recognition of this, the government is now consulting on how straightforward and emergency work in Higher Risk Buildings can be carried out more easily and quickly, while maintaining the obligations to carry out the work safely and properly.
What is a Higher Risk Building?
A quick reminder that, in summary, a Higher Risk Building is a building that contains at least two residential units and is either at least seven storeys high, or is 18 metres or more in height.
However, the position is much more complex in practice and should always be checked.
The current law
Building Work is defined in regulation 3 of the Building Regulations 2010. It includes
- the erection or extension of a building
- material alteration of a building, controlled service, or fitting
and will be widely interpreted.
Consultation One – Maintenance and Repair of Higher Risk Buildings. This consultation is now closed.
Building work to existing Higher Risk Buildings must receive formal approval from the Building Safety Regulator before the work can start. The limited exceptions to this are if the work
- is exempt under regulation 57 and Schedule 2 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. Schedule 2 is a detailed list of relatively minor items, such as replacing gutters
- is carried out under a Competent Persons Scheme. These schemes are governed by part 5 of the Building Regulations 2010. Competent persons may carry out certain works, listed in Schedule 3 of the Building Regulations, under self-certification schemes, or work may be inspected by third party certifiers. Examples of self-certification schemes are the Gas Safe Register and FENSA
- is an emergency repair under regulation 10 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. Emergency repairs are repairs which must be carried out urgently due to the risk to health, safety or welfare or persons in or about the building, and where applying for building control approvals would not be practicable, given the risk posed. Information regarding the emergency repairs must be submitted to the Building Safety Regulator and principal accountable person as soon as reasonably practicable after the repair work has started.
Building work to Higher Risk Buildings is split into Category A work, and Category B work. Category A work is set out in a list, and Category B work is all other work which is not within Category A.
Category A work generally has stricter approval requirements, (although the Building Safety Regulator can extend those requirements to Category B items if it considers it necessary or if the building regulations require it). The Building Safety Regulator is obliged to carry out more widespread consultation before approving Category A work, and the same documentation has to be submitted as required for new buildings.
Category A work includes at least one of the following:
- changing the external height or width of the building;
- changing the number of storeys (including adding or removing a mezzanine or gallery floor);
- changing the internal layout;
- changing the number of residential units;
- work to the external wall (excluding work or materials of specified descriptions);
- work that involves passive fire safety measures (such as fire-resistant materials);
- work that involves active fire safety measures (such as sprinklers and alarms);
- work that affects the number or width of staircases or other escape routes;
- work on the building’s common areas, including any work on the external wall which is otherwise not Category A applicable.
Category B work is anything else.
The proposal for reform
There are two proposals for reform.
Option 1 is to exclude most building work within individual flats in residential or mixed-use Higher Risk Buildings from Category A. Building work which has implications for the safety of the wider building and residents, such as works to load bearing walls or active fire safety measures, would remain within Category A.
Option 2 is to exclude small scale building work in communal areas, in all Higher Risk Buildings, from Category A. Small-scale work is work that could typically be undertaken by 3 or fewer people, within 5 working days and which does not impact fire safety measures. The government believes that this would include work such as repairing a window frame or the installation of new emergency lighting.
Consultation Two – Emergency Repairs – closes 3 September 2026
The government recognises that the emergency repairs regime is not working well and that is has created confusion for dutyholders and residents. This means that some works are wrongly being carried out under the emergency repairs dispensation and some works which are required as an emergency are not being carried out quickly enough while regulatory approval is being obtained.
In addition, some works which do not qualify as emergency repairs are still urgent and need to be carried out more quickly than the current regime allows.
The first option is either to leave the provision as it is, or to amend the definition of emergency repairs to include replacements and upgrades. The example given is the replacement of a broken fire alarm system, and upgrading it at the same time.
The second option is to introduce a new category of works, critical works, which would allow urgent, critical works which do not qualify as emergency repairs to be carried out quickly.
Critical works would include repair, replacement and improvement where the risk to health, safety and welfare is assessed by a wider range of factors, which might include factors such as financial and emotional welfare. Examples might include planned work which has suddenly become urgent as a consequence of a deterioration in the building fabric caused by extreme weather, or the replacement of medical equipment in a hospital.
The government is also consulting as to how a competent person scheme might be introduced for the carrying out of emergency repairs or critical works.
Thoughts
The Act is an enormously complex attempt to revolutionise the industry’s approach to ensuring the safe construction and occupation of buildings. Efforts to simplify its provisions, so that they can be more easily understood and put into practice, particularly by people who manage and occupy Higher Risk Buildings, are to be welcomed. The risk is that, by creating new dispensations for particular sub-categories of work, or new categories of work altogether, the Act is made more complicated and less comprehensible.
For further information, please contact:
Jane Hughes, Bird & Bird
jane.lhughes@twobirds.com
