Fire Safety (England) Regulations 2022 now in force

The Fire Safety (England) Regulations came into force on 23 January 2023.

The purpose of these regulations is to implement the recommendations made during Phase 1 of the Grenfell Tower Inquiry, and they impose specific and ongoing obligations on the “responsible person” in relation to fire safety, in line with the duties outlined in the Building Safety Act.

The “responsible person” is broadly the owner of the building or, if the building is used for a business, the employer (by reference to the Regulatory Reform (Fire Safety) Order 2005).

What is required of the reasonable person varies, according to the height of the building.

All Buildings

There are some baseline obligations, which apply to all buildings (of any height) which contain two or more residential units with common parts used for emergency evacuation, which require the responsible person to:

• display fire safety instructions (easily understandable by residents), including the evacuation strategy for the building, instructions on how to report a fire, and any other instructions for residents in the event of the fire; and
• provide information about fire doors (the need to keep them shut when not in use, not to tamper with the self-closing devices, and to report any faults or damage immediately).

This information must be provided to all new residents, and to all residents every 12 months.

Buildings over 11 metres high

Enhanced obligations apply in respect of residential buildings over 11 metres high, which require the responsible person to:

• check the fire doors at the entrances of individual flats every 12 months, and keep records; and
• check fire doors in communal areas at least every 3 months.

Buildings over 18 metres high

The most stringent obligations apply to “high-rise residential buildings” (buildings containing 2 or more residential units, which are either 18 metres high or over 7 stories high), for which the “responsible person” is required to:

• prepare a record of the design of the external walls of the building (including construction materials), recording any identified risk and mitigating steps taken – and provide a copy to the local fire and rescue authority;

• prepare a floor plan and building plan, identifying the key features of the building, including the layout, fire and rescue access, controls for smoke control or sprinkler systems, and the location of stairways – and provide a copy to the local fire and rescue authority;

• install and maintain a secure information box containing contact details for the responsible person and its nominees, as well as floor plans and building plans which can be readily accessed by fire and rescue services;

• carry out monthly checks of fire lifts, and firefighting equipment within the building and rectify any faults and keep records of those checks accessible to building residents; and

• ensure the building contains wayfinding signage, identifying each floor within stairways and lift lobbies, and identifying each flat.

The Regulations impose regular and ongoing obligations on the “responsible person” for any building, increasing in scope for taller buildings, which will require a stringent schedule of fire safety measures, and diligence in ensuring they're regularly monitored and updated.

As the Regulations are now in force, building owners should now be complying with them.

We anticipate this area will continue to evolve, and more secondary legislation will follow with increased duties on building owners, or those responsible.

Higher Risk Buildings (Key Building information etc.) (England) Regulations 2023

These Regulations are due to come into force on 6 April 2023, and specify the information the accountable person (as defined in the Building Safety Act) must provide to the regulator in relation to higher-risk buildings – which are buildings over 18 metres or at least 7 storeys high, with at least 2 residential units.

They also set out which parts of a higher-risk building an "accountable person" is responsible for, where there are multiple accountable persons.

Key building information

The Building Safety Act defined who would be an “accountable person” and, for buildings with more than one accountable person, the “principal accountable person” (a "PAP").

As part of the "golden thread of information" outlined in the Building Safety Act, the PAP must provide the following "key building information" to the regulator:

• details of any ancillary building (which is attached to, but does not form part of the main building), and whether it is also a higher-risk building;

• the principal and subordinate use of the higher-risk building (and any ancillary building, outbuilding or below ground level floors), and any change in use since construction;

• details of the material used in the external walls (and any fixtures attached to them), insulation, roof, and structure of the building;

• the number of storeys below ground level, and the number of floors served by each staircase;

• the type of energy supply and storage system used; and

• a description of the type of evacuation strategy in place for the higher risk building, and a list of the fire and smoke control equipment within the building and their locations.

The PAP must provide this information to the regulator electronically within 28 days of submitting an application to register that higher-risk building, and the PAP must notify the regulator of any change to that information within 28 days of becoming aware of such change.

In order to enable the PAP to fulfil its obligations, each accountable person must provide the PAP with key building information for the parts of the building they are responsible for on request, or within 28 days of becoming aware of any change.

Which parts of the building is each accountable person responsible for?

Where there is one accountable person (whether through a commonhold association or not), they are essentially responsible for any common parts, any residential/commonhold unit, and any balcony.

Where there is more than one accountable person, each will be responsible for the common parts of the building for which they (a) hold a legal estate in possession; or (b) a repairing obligation – in line with section 73 of the Building Safety Act. Where these apply to the exterior part of the building, that responsibility will also extend to any balcony.

Again, with these requirements due to come into force imminently it is important that building owners/accountable persons are on the front foot.

The Building Safety Levy

The Government carried out an initial consultation on a “building safety levy” back in 2021, the purpose of which was to require developers of new residential buildings to contribute sums which would be used to fund remedial fire safety works for existing buildings (of over 11 metres), so that the cost would not be imposed on leaseholders or taxpayers.

Section 58 of the Building Safety Act gave the government the right to make regulations to impose such a levy but the terms of the levy have so far been unclear. The Government launched a second consultation in November 2022 (which closed on 7 February 2023) setting out how it envisages the levy working.

In short, the current proposal is that the levy will apply to all residential buildings, and will be payable either on a per unit or per square metre basis to local authorities as part of the building control process.

The consultation envisages two exemptions – a minimum threshold beneath which the levy won’t apply to protect SMEs (currently suggested as developments of under 10 units, or an equivalent calculated in square metres); and an exclusion for socially beneficial construction, including affordable homes, medical buildings, care homes, prisons and military buildings.

In line with the government's “levelling up” agenda, the consultation also suggests there may be variations on the amount payable both geographically, and by land type (with lower rates payable in certain areas, and for brownfield developments).

The consultation invited input on how the building safety levy will interact with other charges in place, such as the Community Infrastructure Levy, the Infrastructure levy, the Residential Property Developer Tax and Section 106 payments.

These are currently only proposals, but whatever form the levy takes, it looks like a big change is coming for residential developers.

More legislative change?

This is a constantly evolving area, and the Government launched another consultation in December 2022 (closing in March 2023), recommending compulsory use of sprinklers in care-homes, and a requirement for a secondary staircase in blocks of flats above 30 metres.

The current proposal is that this will apply to new buildings only, but the “responsible person” in existing buildings exceeding that threshold will nonetheless be required to justify the steps they have taken to mitigate any risks from a single-staircase property. Only this week, the GLA has confirmed that it will require a secondary escape on all new residential buildings over 30m.

This means there will more changes on the way, and additional obligations on the “responsible person” for high-rise residential buildings.