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The impact of the Building Safety Act 2022

Louise Mansfield, legal director, Bevan Brittan

The Building Safety Act 2022 (“BSA”) takes forward the government’s commitment to fundamental reform of the building safety system. It aims to improve structural safety and the risk of fire spread in and around buildings by ensuring there is greater accountability and responsibility throughout the lifecycle of a building. Many provisions of the BSA are due to come into force during 2023.

Some of the changes and requirements of the BSA will apply to all buildings, with the new Building Safety Regulator (part of the Health and Safety Executive) being tasked to secure the safety of people in or about and the overall standards of all buildings (not just higher-risk ones).

The key provisions for the higher education sector are however those which apply to “higher-risk” buildings, generally defined as buildings which are 18m or more high or have 7 or more storeys and which have a residential element, which may capture a large amount of student accommodation. Actions required include:

  • registering relevant buildings with the Building Safety Regulator between now and 1 October 2023. Failure to register will be a criminal offence;
  • identifying / appointing an Accountable Person to have legal responsibility for ensuring that the spread of fire and structural risks in the building are understood and that the BSA is complied with;
    taking appropriate steps and actions to mitigate and manage these risks; and
  • compiling a golden thread of information to evidence how a building is constructed and that it is safe from these risks (providing this evidence to the Building Safety Regulator if requested).
  • Where there is combustible cladding on a building, a fire engineer will need to be appointed to assess the risk, but in many cases it will need to be removed. The government has new powers (which it has been very vocal in saying it will use) to force those that do not take action voluntarily to do so. Where there are other fire safety defects, they will need to be assessed as part of a fire risk assessment of the building under the Regulatory Reform (Fire Safety) Order 2005 (“FSO”), but in most cases remediation will be required. Prior to remediation work, temporary fire protection measures may need to be implemented, such as installing sprinklers, reducing building occupancy, or a waking watch.
  • Any future building work (defined widely) undertaken in relation to higher-risk buildings will have to get approval from the Building Safety Regulator and go through three hard stop gateways at each of which evidence of safety must be provided before building work can continue. There are also new requirements for a golden thread of building information to be collated and new duties on all parties involved in the construction to ensure fire spread and structural safety requirements are met, similar to the duties in the Construction (Design and Management) Regulations 2015.

The BSA works alongside existing fire safety legislation, namely FSO, which applies to commercial premises and the common parts of residential premises and places duties on the ‘Responsible Person’ in relation to the overall fire safety of buildings (not just the risk of fire spread). For workplaces, the Responsible Person is usually the employer, and for residential buildings, the person(s) in control and anyone with duties for repair, maintenance or safety of common parts.

The FSO was amended in 2021 to clarify that the common parts of residential buildings include the structure and external walls of the building, including cladding, balconies and windows; and entrance doors to individual flats that open into common parts. It was updated again in 2022 by the Fire Safety (England) Regulations which came into force on 23 January 2023 to require Responsible Persons in multi-occupied residential buildings to take specific additional actions depending on the height of the building.

Providers should already be assessing their estates, reviewing fire risk assessments, identifying whether they have any higher-risk buildings, and if so, understanding how those buildings are constructed and registering them with the Building Safety Regulator.