Contributors
The Building Safety Act 2022 imposes a requirement on those responsible for higher risk buildings or HRBs to register the building with the Building Safety Regulator (BSR) by 30 September 2023. It is an offence to allow an HRB to be occupied where it is not registered with the BSR. If you are the owner of a building that is at least seven storeys or more than 18m in height (or are responsible for the management of a building of that type) you should be aware that there is now an urgent requirement to prepare an application to the BSR to register the building.
The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 were published on 17 August 2023 and provide the detail as to the information that needs to be provided to the BSR. They also provide guidance as to how to determine who the relevant Principal Accountable Person (PAP) is.
The online application is relatively straightforward. You will need a credit or debit card to pay the £251 registration fee, together with details of the building's name, address and postcode, a building summary, including the height in metres, number of rooms, number of floors and residential units, the year of completion and names and contact details of the PAP and/or other Accountable Persons (APs). The regulations also call for information on the materials used in the external wall system and roof structure, any fixtures attached to the external walls, details of any staircases or 'cores' within the building, the energy supply to the building, the evacuation strategy in place and as to fire and smoke control equipment.
The application needs to be submitted by the PAP and once identified, the PAP becomes responsible for managing and monitoring building safety issues, taking steps to address any building safety issues that subsequently arise and will be the focal point for contact with the BSR. Assessing who the PAP is for an HRB can be a relatively complicated task.
The Act (as supplemented by the above regulations) categorises an AP is someone who is either the owner of an HRB through the retained freehold or leasehold ownership of common parts or someone who is not a title holder but is responsible for maintaining, repairing and renewing the common parts of the building through lease obligations. Where residential unit leases relate to properties with balconies the regulations make clear that the balconies form part of the common parts (this is unlikely to be an issue as these are usually retained as part of the common parts in lease disposal documents). By way of example, a management company bound into lease documents for the purpose of delivering services to the residents may be an AP even where they do not own a freehold or leasehold interest in the building.
But, the position can be complicated where there is either more than one AP or where there are multiple "common parts" referenced within lease documents. The type of structure of the buildings in this height range is generally fairly complex with a multi-layered approach and identifying who is ultimately responsible can be difficult.
Where there is only one AP the position is relatively straightforward and that person would become the PAP. But, where there is more than one AP, the PAP should be the entity that most directly holds the repairing obligations for the structure and exterior of the building. For example, where there is a freeholder that is obligated to repair and maintain a building but that obligation is also imposed on a management company and (as is often the case) the unit leases make clear that the freeholder is only entitled to exercise its powers where the management company defaults on its obligations, our view is that the management company would be the relevant PAP.
The intention is that every HRB should have a PAP and that the PAP, that they will be regarded as the relevant Accountable Person for the building by the regulator and they will not be permitted to delegate their legal obligation. The idea is to create a single point of contact for ease of dealing by the BSR.
We regularly advise clients on AP and PAP assessment and have devised a systemised approach to delivering that assessment that is quick and affordable. This includes straightforward reporting with our view on the most appropriate PAP and the underlying logic. If you have not already processed your application and are struggling to make sense of the title documentation for your building, which can often be complex, we would be pleased to help you and have devised a service with that in mind. At this point there are only six weeks left to get an application submitted and, depending on the outcome of the review it may be necessary to discuss the position with other parties and perhaps even to persuade another to accept the PAP role. So, as is often the case with changes in the law, time is not currently on our side.
