Taking pre-emptive action on building safety

COMMENT Building Safety Act 2022, Fire Safety Order 2005, The Higher-Risk Buildings Regulations from 2023, The Construction Products 2022, HRBs, FRAEWs, PAPs, BACs, CSS, Gateways – are you keeping up? The vocabulary needed to comprehend landowners’ obligations in respect of building safety is vast, and that’s before you consider the legal and technical realities. A quick skim of current regulation might lead you to believe that as a landlord of one or more residential buildings less than 18m high, or commercial premises that are taller, you can stop reading now. Spoiler: you shouldn’t! To start with, seemingly innocent terms like “residential” are actually loaded. What might be considered an office or retail asset according to a holdings schedule might actually be, technically, mixed-use. Such mixed-use holdings could, in turn, be classed as “residential” in building safety terms: two flats atop a high street retail parade, serviced apartments on one floor of an office block – you get the idea. Should such a building be 18m tall or more, it becomes “high risk”, with layers of legally binding checks and reports applicable. Compound this with different applicability in England, Wales and Scotland and you end up with a web of rules and definitions that leave many investors unsure, or simply unaware, of their building safety liabilities asset-by-asset. But before we can begin to untangle the legislative web for a given property or a whole portfolio, landlords may need to ready themselves for more strands to the web being spun soon. Severe penalties According to the government, “there are far too many residential buildings today still with unsafe cladding and the speed with which this is being addressed is far too slow”. Recommendations from the Grenfell Phase 2 Report suggest change is coming. The detail of such change is unclear, but government is already consulting on reducing the legal height threshold for buildings to require “registration” if they are 11m-plus and contain at least two residential dwellings. Via its Remediation Acceleration Plan, government is already targeting the end of 2029 for all 18m-plus buildings with unsafe cladding to have been remediated. Furthermore, by the end of 2029, it states 11m-plus buildings with unsafe cladding will either have been remediated, have a date for completion, or will warrant severe penalties. 2029 is some way off though, so why not wait and act when the rules are formally announced? By then, we might even benefit from a tidy-up of that web of overlapping legislation and guidance. The answer is twofold. Perhaps predictably, part one is about time and money. There is a clear commercial rationale for meeting anticipated standards before government legislates. The 18m definition for high-risk buildings is found within the Building Safety Act but government has shown willingness to enact change via secondary legislation or regulation – rather than statute. Legally speaking, this means it may not require the lengthy debate and phased implementation the BSA itself had, for example. This could make single assets or swathes of portfolios non-compliant pretty quickly. Assessing a portfolio’s risk profile in respect of a reduction from 18m to 11m for legislation to take effect allows an investor to consider their position and take pre-emptive steps to limit the impact of a swift reduction on that 18m figure. Leaving multiple assets potentially untradeable until remediation is complete is a less palatable alternative. Skills and know-how Should legislation change quickly, it is likely to prompt a rush on the limited industry expertise in the building safety space. A height of 11m is equivalent to just five storeys – a generally prevalent building height in town and city centres across the country – so there is a sheer numbers story at play here. Secondly, the answer is about corporate reputation and, frankly, social responsibility. When immersed in the technical detail of building reports and holdings schedules, we can lose sight of the reason the industry was shaken into action on fire safety in June 2017: homes and families. Given the relative dearth of building safety specialists operating in the UK, the vast majority are working in the private sector. The skills and know-how to make homes safer for those living in them is held within our industry. Reputation, pride, but more importantly our collective conscience, should make this a priority for the real estate sector and drive us to act before government forces us to do so anyway. Amy Farr is head of building safety at Workman Image © Peter Manning/LNP/Shutterstock