For those of you involved in the construction sector, it will not be news that the Building Safety Act 2022 (the "BSA") gained royal assent on 28 April 2022 and became law. One of the key provisions of the BSA was to introduce a new organisation – the Building Safety Regulator – who will have responsibility for the regulation of "higher risk" buildings in England and Wales.

Whilst the BSA is clear that "higher risk" building will be those either over 18m or containing at least seven stories, the BSA itself does not set out which buildings within these categories will be within the remit of the new regulator. The UK Government has therefore launched a consultation seeking views on its proposals as to which buildings be covered.

Government's Proposed Position

The Government's position can be summarised as follows:

  • The definition of a "building" should be any structure or erection, and any part of a building, but not any plant or machinery comprised in a building, as defined in the Building Act 1984;
  • The definition of a "higher risk building" during the design and construction phases should include all buildings which contain at least two residential units or are care homes or hospitals, but should not include prisons, hotels or military barracks. The Government are of the view that it would not be proportionate to include prisons or hotels within the regulator's scope and point to the fact that the Ministry of Defence has its own fire safety arrangements and specific security considerations which need to be considered.
  • However, as they will be "workplaces" during their occupation, care homes and hospitals will not be included within the definition during this phase.
  • The 18m height definition will be based on the height from ground level 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 machinery or plant is excluded from consideration.
  • Again any storey which contains only machinery or plant does not count towards the 7 storey limit and nor will any basement level.

Much of this information will be familiar to anyone who considered the draft Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations which was previously available on the Government's website but were taken down before the BSA became law. However, confirmation of the Government's thinking will be welcome to those working in the industry.

Next steps

The Consultation remains open until 21 July 2022. If you would like to provide your reviews, the Government website contains an online survey here to allow all interested parties to provide a view.

Once the response to the consultation has been considered we expect that secondary legislation will follow shortly thereafter, as the Government currently plan for the Building Safety Regulator to go "live" in April 2023.


Eric Johnstone

Legal Director

Louise Shiels

Head of Dispute Resolution and Risk & Partner