Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023

Baroness Brinton Excerpts

Tuesday 21st February 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, these regulations will complete the definition of a higher-risk building, setting which buildings will be subject to the legal requirements of the new regime for building safety created by the Building Safety Act 2022. They are a fundamental part of our ongoing reforms to ensure that all residents’ homes are a place of safety.

The Act is based on Dame Judith Hackitt’s recommendations and establishes a new regime that creates stronger oversight of, clearer accountability for, and stronger legal duties on those responsible for the safety of higher-risk buildings throughout their lifecycle. There are two parts of the new regime. The first covers the design and construction of new higher-risk buildings and building work to existing higher-risk buildings. I will refer to this as the design and construction part. The second establishes a new regulatory framework when higher-risk buildings are occupied. I will refer to this as the occupation part.

The definition of higher-risk building is set, in part, by the Act. The Act sets the height threshold for higher-risk buildings at 18 metres or seven storeys. It also states that buildings meeting this threshold which have two residential units are in scope of the occupation part of the new regime. These regulations build on the provisions set out in the Act. They complete the definition of a higher-risk building and set out exactly which buildings will be subject to the legal requirements of the new regime that will be directly overseen by the building safety regulator.

These regulations can be considered in several parts. First, the regulations specify that hospitals, care homes and buildings containing at least two residential units will fall within the scope of the design and construction part of the new regime where they meet the 18 metres or seven storey height threshold set in the Act. They also specify that certain types of buildings are excluded from the new regime. Hotels, secure residential institutions, for example prisons, and military premises, such as barracks, are excluded from both parts of the new regime. In addition, the regulations specify that hospitals and care homes are excluded from the occupation part of the new regime. All other buildings with at least two residential units that meet the height threshold set in the Act will fall within the new regime. We have set this as the scope as we want to ensure that proportionate rigour is applied to buildings where the risk of fire spread or structural collapse is higher.

Dame Judith Hackitt recommended focusing on residential buildings, and we agree that occupied non-residential buildings are already adequately and proportionately regulated through other legislation. These building types are therefore not included in the new regime overseen directly by the building safety regulator. We have responded to concerns of stakeholders around the design and construction of care homes and hospitals by including them in the design and construction part of the new regime. This ensures that high-rise buildings which may be occupied by those who are unable to evacuate quickly or without assistance are designed and constructed under the new regime. We are being ambitious while maintaining the focus on tall residential buildings for which Dame Judith Hackitt advocated.

These regulations also provide an overall technical definition of a building for higher-risk buildings. Some of the buildings under the new regime will be large, complex structures with multiple parts. The building definition therefore allows a building to be defined depending on the design and structure of the building. We have adopted a broad definition of “building” when a new higher-risk building is constructed, so that the building safety regulator can consider the overall structure while it is built.

For work in existing buildings and the occupation part of the new regime, “building” is defined more narrowly in certain circumstances: for example, when multiple structures are joined and there is no access between them. This is because it would be disproportionate to apply the duties and responsibilities of the new occupation regime across an entire set of structures, especially when some of the structures taken in isolation may not meet the criteria to be higher-risk buildings. This definition will ensure that the requirements of the new regime are applied proportionately and only to buildings that represent the highest risk. We will produce detailed guidance allowing those constructing and managing buildings under the new regime in the future to understand clearly whether they are in scope of the new requirements.

The regulations also set out how to measure height and storeys for higher-risk buildings. The regulations specify that height should be measured from ground level to the top of the floor surface of the top storey of the building. Similarly, storeys should be counted from ground level to the top storey of the building. In both cases, any storeys below ground level, for example an underground car park and any area containing only rooftop machinery, should be ignored. We have chosen these methods as they are well understood, are existing ways of measuring in the building sector and mirror a method already taken in building regulations.

Our two-pronged test for measuring buildings will also help prevent gaming of the system and make sure that the right buildings are captured. The method will be clear to those constructing and managing buildings under the new regime and support our aim of creating proportionate and effective building safety systems. These regulations are key to setting up a new regime for building safety and bringing about the systematic, lasting change that we know is needed to help people be and feel safe in their homes. I hope noble Lords will join me in supporting the draft regulations. I commend them to the Committee.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for her introduction, which is very helpful, and the Government for going slightly further than Dame Judith Hackitt suggested when she talked about 10 storeys. I have a couple of questions and comments. The Minister will not be surprised to know that in my noble friend Lady Pinnock’s absence I might mention 11 metres, on which I entirely support her. I declare my interest as a vice-president of the Local Government Association and a vice-chair of the All-Party Group on Fire Safety and Rescue.

I am pleased that the Minister referred not just to fire safety but to building collapse. Following the horrendous earthquake in Turkey and Syria, with repeated earthquakes since, we have seen how structures absolutely have to be got right.

The Explanatory Memorandum was extremely helpfully written and very clear, and for that I thank the Minister and her officials. One of the points that Dame Judith Hackitt made at the very start of her report, about a high-rise building being a system, is vital for this. I know that much of her report was about the building process, the updating process and the system thinking that goes with them, but for this statutory instrument it is really helpful to think of all these buildings as systems. I will speak briefly about those three strands that she referred to: new high-risk buildings, the work needed for existing high-risk buildings, and that needed for those that are currently occupied.

Paragraph 7.8 of the Explanatory Memorandum refers to

“hospitals, care homes and buildings containing at least two residential units”.

I wonder how many care homes are over seven storeys, because that does not tend to be the case. Is this planning for the future rather than for existing care homes? That would be helpful. I appreciate that many large new hospitals are being built and that there are some already. Addenbrooke’s Hospital, which I know well, is well over six storeys.

This is something that Dame Judith Hackitt referred to quite a lot in her report. When she talked about 10 storeys, the point was that that was the starting point of the most urgent work that needed to be carried out, but she specifically talked about hotels, secure residential institutions, hospitals and care homes, where the Government might choose to look at considerably lowering the number of storeys. In paragraph 1.5 of that report, she says:

“However it will also be important to ensure that government can respond quickly in the future, where necessary, to broaden this definition in light of either critical new information emerging … or experience of operating the new regime.”


She talks about

“in due course … a wider set of residential buildings below 10 storeys”—

she does not say that 10 storeys is the limit—and specifically those

“where people sleep (such as hospitals or care homes)”.

So why are they, and hotels and secure residential units, being excluded? I see in the Explanatory Memorandum that the Government believe they are covered. Dame Judith Hackitt is saying that actually the Government need to reconsider that, perhaps with a slightly longer timescale. Has it been reconsidered and this is the new view or, given the amount of work that has been done on the very urgent part, is that still to come?

Finally, we would not be discussing high buildings if I did not mention PEEPs. In mid-December, a High Court hearing brought by Claddag—the Leaseholder Disability Action Group—revealed correspondence that showed that a decision had been made by the noble Lord, Lord Greenhalgh, in 2021-22 not to go for PEEPs while saying that consultations were still going on. I know that the Government have said that that is not the case, but this court case had the emails that showed it to be the case. I will spare the Grand Committee’s time by not quoting from them, but they are very much in the public domain.