Principal Accountable Persons: Registration of Higher-Risk Buildings by 30 September 2023

The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations (“the Registration Regulations”) and The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 (“the KBI Regulations”), are part of a raft of secondary legislation made pursuant to the Building Safety Act 2022 (“BSA 2022”). The Regulations are made to supplement provisions in the BSA 2022 requiring the Principal Accountable Person to register existing higher-risk buildings with the Building Safety Regulator (“BSR”) by 30 September 2023.

A higher-risk building is one which is at least 18 metres in height or at least 7 storeys, and contains two or more residential units. It excludes certain types of buildings such as occupied care homes.

The Regulations came into force on 6 April 2023.

The Registration Regulations contain details of the information which must accompany an application by the Principal Accountable Person to register a higher-risk building by 30 September 2023. This includes information such as a description of the building, details about building control and a fee of £251.

The KBI Regulations also require the ‘Principal Accountable Person’ to provide certain information to the BSR. This information needs to be kept and sent to the BSR electronically within 28 days after applying to register the building with the BSR (the deadline for the registration of existing higher risk buildings is currently 30 September 2023).

Who is the Accountable Person and Principal Accountable Person?

An ‘Accountable Person’ in relation to buildings over 18m (or at least 7 storeys) and which contain at least two dwellings (higher risk buildings), is either a person “who holds a legal estate in possession in any part of the common parts” or is under a relevant repairing obligation in relation to any part of the common parts.

As it is possible for there to be more than one ‘Accountable Person’ for any given building, section 73 provides information as to who will be the ‘Principal Accountable Person’. Of course, in many cases there will only be one ‘Accountable Person’ who will naturally be the ‘Principal Accountable Person’.

Where a building contains more than one ‘Accountable Person’, careful co-operation will be needed between the various ‘Accountable Persons’. The Regulations also set out pursuant to section 74 BSA 2022 the parts of a higher risk building which any given ‘Accountable Person’ has responsibility for in relation to Part 4 BSA 2022. Part 4 contains duties for registration, assessment and management of building safety risks, and reporting requirements.

The Regulations clarify that the ‘Accountable Person’ will be responsible for the common parts, residential units and balconies in respect of the parts of the building for which they are responsible. The Accountable Person is also responsible for any part of the higher risk building in which the Regulatory Reform (Fire Safety Order) 2005 does not apply.

What is key building information?

The KBI Regulations set out prescribed information which is deemed ‘key building information’.

The KBI Regulations also clarify that information as to ‘ancillary buildings’ (defined as buildings which are attached to the relevant higher risk building but which do not form part of it) must also be provided to the BSR. Information as to the use of building, any ancillary buildings or outbuildings or any storey below ground level must be provided, as well as subordinate uses (though not for outbuildings).

Further information required to be provided includes details of the materials used in the composition of the external wall of the relevant higher risk building. If more than one material is used the percentage composition must be recorded. The same information must be provided for any external wall insulation and any fixtures to the external wall.

Information about the roof of the higher risk building, the main material used in the waterproof layer, whether there is a separate layer of insulation and whether the roof plane is pitched or flat or a combination is also required. Certain structural information also needs to be provided, so that the BSR has a clear view as to how the relevant higher risk building has been built, and the materials used.

In addition to the above, the types of energy and energy storage systems in the higher risk building must also be recorded, as well as matters relevant for fire detection and access/egress such as the number of staircases, location and type of all the fire and smoke control equipment and the type of evacuation strategy in place.

While the above is not an exhaustive list, the requirements are extensive, and anyone who considers they may be an ‘Accountable Person’ or ‘Principal Accountable Person’ would be well advised to take legal advice as to their position and ensure they have all the relevant information ready to ensure that they are able to meet their legal duties.

Any subsequent change to the key building information must be notified within 28 days of the Principal Accountable Person becoming aware of the change, and other Accountable Persons must inform the Principal Accountable Person within 28 days of them becoming aware of any change. There is therefore an ongoing duty on the Principal Accountable Persons to ensure that the key building information is kept up to date.

The Health and Safety Executive has opened the portal for registering a high-risk building and has published accompanying guidance. This suggests that key building information needs to be given before 1 October 2023. However, the KBI Regulations state that the key building information needs to be submitted within 28 days of registration. Taking a prudent approach, Principal Accountable Persons may therefore wish to ensure that they also have the key building information available at the same time as or shortly after submitting their application for registration. In addition, Principal Accountable Persons may wish to seek advice on the particular circumstances of the relevant higher-risk building to ensure they fully comply with their obligations bearing in mind that failure to comply with the requirement to register a higher-risk building is a criminal offence under section 77 of the BSA 2022. Principal Accountable persons will want to ensure they understand their obligations in relation to registration sooner rather than later to ensure that they comply with their duties to register a higher-risk building by 30 September 2023.

For more information, please visit our Building and Fire Safety Hub.

Please do not hesitate to contact Richard Flenley, Oliver Park, Laura Bushaway or your usual Charles Russell Speechlys contact if you have any queries.