On 9 June 2022 the Department for Levelling Up, Housing and Communities (DLUHC) launched a Consultation on the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations. The consultation sought views on governments’ full proposals for the regulations. The consultation ran for 6 weeks from 9 June 2022 to 21 July 2022. It was published on the department’s online consultation platform Citizen Space, as well as on gov.uk.

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations complete the definition of higher-risk building. Higher-risk buildings are buildings which will be required to meet the legal requirements of the new more stringent regime for building safety.

There are two parts of the new regime. The first establishes a new regime for the design and construction of new higher-risk buildings and building work to existing higher-risk buildings. The second establishes a new regime when higher-risk buildings are occupied.

This particular consultation was split into several sections, covering the definition of a ‘building’, exemptions and inclusion during all lifecycle stages, how to measure the height of buildings, how to count its stories, and finally, the impact, the act has on equalities. It sought views on 26 questions. This response summarises respondents’ views by considering comments made in relation to each of the questions included in the consultation document.

Following the consultation, respondents provided their views, concerns and suggestions across the various sections. As a result, the government reviewed and accepted that more clarification was required in reference to a number of areas, they are as follows (please note that changes to the regulations set out here, as released on 19 December, are still subject to parliamentary approval);

Arguably the biggest change is the inclusion of plant and machinery within the definition of a building;

Respondents’ Concerns

The most common concern was the exclusion of plant rooms and machinery from the definition, with many respondents recommending that plant rooms and machinery be included within the building definition.

The reasoning most given for this was that plant machinery is integral to the overall safety of the building. It was also raised that plant rooms could contain firefighting or suppression equipment, as well as other key infrastructure important to the overall safety of the building.

Some respondents also raised that plant rooms and machinery could be a source of potential fire or structural collapse.

Government Response

The updated (building) definition will include plant rooms and machinery within the definition of building, giving the Building Safety Regulator (BSR) the ability to regulate them as parts of higher-risk buildings.

This amendment, they state, will make sure that parts of a building which contain important fire safety equipment are included within the boundaries of higher-risk buildings.

A hot potato in terms of discussion in the industry is this particular subject. So great to see more definition provided;

Respondents’ Concerns

The proposed definition, respondents suggest, was potentially confusing and vague. They felt that the definition could define a building more clearly, and without using the word ‘building’ within the definition.

A smaller number of respondents raised comments about how several buildings classified under a single building name should be considered and how buildings attached by a wall (for example terraced buildings) should be defined.

A small number of respondents also raised that the proposed definition did not completely align with the Building Act 1984.

Government Response

They have amended the proposed definition in the regulations to more clearly set out what is and is not considered a building for the purposes of the design and construction and occupation parts of the new regime.

The updated definition is significantly more detailed and provides different definitions of building for the purposes of the design and construction and occupation parts of the new regime.

The updated definition can be found in the regulations currently being laid in parliament and a further explanation of the updated definition can be found in the related explanatory memorandum (PDF 65kb).

The government has made these changes to appropriately capture complex buildings, specifically, large, attached buildings, in the definition. The updated definition will allow the operational requirements in occupation to be met more easily.

This in particular has always created confusion amongst building owners and particularly contractors working on new projects in design and construction phases and whether or not they need to comply with the new regime;

Respondents’ Concerns

There may be potential issues with the proposed method for measuring height and suggested small technical changes to the method. They noted that the method was unclear and should be further explained including further clarification on the meaning of ground level and where this should be measured from as users may interpret ground level in different ways.

They also requested further clarification on whether roof levels should be counted, particularly in the scenario it is used as a rooftop garden or similar and whether roof levels should always be included within the height measurement regardless of use.

Intriguingly, a small number of suggestions that levels with plant machinery and basements should be included within the height measurement. This was to prevent people ‘gaming’ the system and building multiple plant levels or basements to house residents.

Others suggested that the method for measuring height better aligned with Approved Document B and for further clarification on how this method will work alongside existing methods for measuring height.

Government Response

They have made some small amendments to the method for measuring height. They have further clarified what ground level means in the regulations by setting out that buildings should be measured from the lowest part of the surface of the ground to which they are adjacent. This will make sure, they state, that owners of buildings built on uneven ground e.g. a hill, are not able to game the height threshold.

They also amended the definition to make sure not all plant machinery levels are excluded and set out that only levels which consist exclusively of rooftop plant rooms or rooftop machinery are excluded from the height measurement. This makes relative sense given that these exclusive plant areas are/should be out of bounds and inaccessible by residents.

The chosen method for measuring height also makes sense as it is a known standard for the sector and is effectively the vertical distance a person would need to ‘travel’ to escape a building from the top floor. These amendments can be found in the regulations currently being laid in Parliament.

As with building heights, industry sought views on the method for measuring the number of storeys in higher-risk buildings and further definition on ‘galleries’ for the purpose of measuring higher-risk buildings;

Respondents’ Concerns

The method for measuring stories was unclear and should be further explained. Requests were also made for further clarification on the meaning of ground level and where this should be measured from, particularly in reference to buildings built on sloping sites and whether roof level should be counted, and what would be considered a finished roof level.

Another interesting suggestion was that plant machinery and basements should be included within the height measurement in order to prevent people again ‘gaming’ the system and building multiple plant levels or basements to house residents(!).

Concerns also that gallery floors could be used to game the system if they are not counted. Whilst some respondents suggested that gallery floors be counted as storeys regardless of their floor area, others suggested that the definition of gallery should be amended so that smaller galleries are counted as storeys.

Government Response

They have made some small amendments to the measuring of storeys, aligning with the changes made to the method for measuring height. They also further clarified the meaning of ground level and set out that the number of storeys in a building should be measured from the lowest part of the surface of the ground to which they are adjacent. This should make sure that owners of buildings built on uneven ground, e.g. a hill, are not able to ‘game’ the height threshold.

As again with heights, they also amended the definition to make sure not all plant machinery storeys are excluded and set out that only storeys which consist exclusively of rooftop plant rooms or rooftop machinery are excluded from the storey measurement.

In respect of ‘gallery’ floors, they also amended the definition to set out that ‘galleries are floors whose internal floor area is less than 50% of the internal floor area of the largest storey vertically above or below’. This is instead of defining galleries as storeys whose floor area is less than 50% of the largest storey in the building. This is to further prevent ‘gaming’ the regime.