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Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023

Volume 827: debated on Tuesday 21 February 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.

My Lords, these regulations will complete the definition of a higher-risk building, setting which buildings will be subject to the legal requirements of the new regime for building safety created by the Building Safety Act 2022. They are a fundamental part of our ongoing reforms to ensure that all residents’ homes are a place of safety.

The Act is based on Dame Judith Hackitt’s recommendations and establishes a new regime that creates stronger oversight of, clearer accountability for, and stronger legal duties on those responsible for the safety of higher-risk buildings throughout their lifecycle. There are two parts of the new regime. The first covers the design and construction of new higher-risk buildings and building work to existing higher-risk buildings. I will refer to this as the design and construction part. The second establishes a new regulatory framework when higher-risk buildings are occupied. I will refer to this as the occupation part.

The definition of higher-risk building is set, in part, by the Act. The Act sets the height threshold for higher-risk buildings at 18 metres or seven storeys. It also states that buildings meeting this threshold which have two residential units are in scope of the occupation part of the new regime. These regulations build on the provisions set out in the Act. They complete the definition of a higher-risk building and set out exactly which buildings will be subject to the legal requirements of the new regime that will be directly overseen by the building safety regulator.

These regulations can be considered in several parts. First, the regulations specify that hospitals, care homes and buildings containing at least two residential units will fall within the scope of the design and construction part of the new regime where they meet the 18 metres or seven storey height threshold set in the Act. They also specify that certain types of buildings are excluded from the new regime. Hotels, secure residential institutions, for example prisons, and military premises, such as barracks, are excluded from both parts of the new regime. In addition, the regulations specify that hospitals and care homes are excluded from the occupation part of the new regime. All other buildings with at least two residential units that meet the height threshold set in the Act will fall within the new regime. We have set this as the scope as we want to ensure that proportionate rigour is applied to buildings where the risk of fire spread or structural collapse is higher.

Dame Judith Hackitt recommended focusing on residential buildings, and we agree that occupied non-residential buildings are already adequately and proportionately regulated through other legislation. These building types are therefore not included in the new regime overseen directly by the building safety regulator. We have responded to concerns of stakeholders around the design and construction of care homes and hospitals by including them in the design and construction part of the new regime. This ensures that high-rise buildings which may be occupied by those who are unable to evacuate quickly or without assistance are designed and constructed under the new regime. We are being ambitious while maintaining the focus on tall residential buildings for which Dame Judith Hackitt advocated.

These regulations also provide an overall technical definition of a building for higher-risk buildings. Some of the buildings under the new regime will be large, complex structures with multiple parts. The building definition therefore allows a building to be defined depending on the design and structure of the building. We have adopted a broad definition of “building” when a new higher-risk building is constructed, so that the building safety regulator can consider the overall structure while it is built.

For work in existing buildings and the occupation part of the new regime, “building” is defined more narrowly in certain circumstances: for example, when multiple structures are joined and there is no access between them. This is because it would be disproportionate to apply the duties and responsibilities of the new occupation regime across an entire set of structures, especially when some of the structures taken in isolation may not meet the criteria to be higher-risk buildings. This definition will ensure that the requirements of the new regime are applied proportionately and only to buildings that represent the highest risk. We will produce detailed guidance allowing those constructing and managing buildings under the new regime in the future to understand clearly whether they are in scope of the new requirements.

The regulations also set out how to measure height and storeys for higher-risk buildings. The regulations specify that height should be measured from ground level to the top of the floor surface of the top storey of the building. Similarly, storeys should be counted from ground level to the top storey of the building. In both cases, any storeys below ground level, for example an underground car park and any area containing only rooftop machinery, should be ignored. We have chosen these methods as they are well understood, are existing ways of measuring in the building sector and mirror a method already taken in building regulations.

Our two-pronged test for measuring buildings will also help prevent gaming of the system and make sure that the right buildings are captured. The method will be clear to those constructing and managing buildings under the new regime and support our aim of creating proportionate and effective building safety systems. These regulations are key to setting up a new regime for building safety and bringing about the systematic, lasting change that we know is needed to help people be and feel safe in their homes. I hope noble Lords will join me in supporting the draft regulations. I commend them to the Committee.

My Lords, I thank the Minister for her introduction, which is very helpful, and the Government for going slightly further than Dame Judith Hackitt suggested when she talked about 10 storeys. I have a couple of questions and comments. The Minister will not be surprised to know that in my noble friend Lady Pinnock’s absence I might mention 11 metres, on which I entirely support her. I declare my interest as a vice-president of the Local Government Association and a vice-chair of the All-Party Group on Fire Safety and Rescue.

I am pleased that the Minister referred not just to fire safety but to building collapse. Following the horrendous earthquake in Turkey and Syria, with repeated earthquakes since, we have seen how structures absolutely have to be got right.

The Explanatory Memorandum was extremely helpfully written and very clear, and for that I thank the Minister and her officials. One of the points that Dame Judith Hackitt made at the very start of her report, about a high-rise building being a system, is vital for this. I know that much of her report was about the building process, the updating process and the system thinking that goes with them, but for this statutory instrument it is really helpful to think of all these buildings as systems. I will speak briefly about those three strands that she referred to: new high-risk buildings, the work needed for existing high-risk buildings, and that needed for those that are currently occupied.

Paragraph 7.8 of the Explanatory Memorandum refers to

“hospitals, care homes and buildings containing at least two residential units”.

I wonder how many care homes are over seven storeys, because that does not tend to be the case. Is this planning for the future rather than for existing care homes? That would be helpful. I appreciate that many large new hospitals are being built and that there are some already. Addenbrooke’s Hospital, which I know well, is well over six storeys.

This is something that Dame Judith Hackitt referred to quite a lot in her report. When she talked about 10 storeys, the point was that that was the starting point of the most urgent work that needed to be carried out, but she specifically talked about hotels, secure residential institutions, hospitals and care homes, where the Government might choose to look at considerably lowering the number of storeys. In paragraph 1.5 of that report, she says:

“However it will also be important to ensure that government can respond quickly in the future, where necessary, to broaden this definition in light of either critical new information emerging … or experience of operating the new regime.”

She talks about

“in due course … a wider set of residential buildings below 10 storeys”—

she does not say that 10 storeys is the limit—and specifically those

“where people sleep (such as hospitals or care homes)”.

So why are they, and hotels and secure residential units, being excluded? I see in the Explanatory Memorandum that the Government believe they are covered. Dame Judith Hackitt is saying that actually the Government need to reconsider that, perhaps with a slightly longer timescale. Has it been reconsidered and this is the new view or, given the amount of work that has been done on the very urgent part, is that still to come?

Finally, we would not be discussing high buildings if I did not mention PEEPs. In mid-December, a High Court hearing brought by Claddag—the Leaseholder Disability Action Group—revealed correspondence that showed that a decision had been made by the noble Lord, Lord Greenhalgh, in 2021-22 not to go for PEEPs while saying that consultations were still going on. I know that the Government have said that that is not the case, but this court case had the emails that showed it to be the case. I will spare the Grand Committee’s time by not quoting from them, but they are very much in the public domain.

That takes us back to the discussions that we had during the passage of the Building Safety Bill on the idea, under Dame Judith Hackitt’s definition, of the duty holder having responsibility to make sure that the building can be safely evacuated. One of the concerns of those of us who are disabled, including Claddag, is that there may have been a slight misunderstanding of the role of PEEPs. The duty holder for this building—Parliament—does not personally escort me and other people in wheelchairs out of the building. They have to ensure that I have a PEEP to be able to get out of the building and that people on duty know what to do. That was the point that I made repeatedly during the passage of the Bill: it is about making sure that the structures are in place.

I remain concerned that this issue still seems to be somewhat in the long grass. Many disabled groups remain very concerned about it. Although it is not the direct responsibility of this statutory instrument, heights and definitions of buildings all come back to Dame Judith Hackitt’s report. She is very clear that there needs to be a way for vulnerable people to be able to remove themselves safely from such buildings when there are problems.

My Lords, Dame Judith Hackitt recommended a new, strengthened regulatory regime to improve accountability, risk management and assurance for higher-risk buildings. These regulations attempt to address this recommendation. They define higher-risk buildings and therefore set out which buildings will be subject to a new safety requirement. We welcome the introduction of the regulations, which, as the Minister has made clear, serve to complete the definition of high-risk buildings, which we need to meet the legal requirement of the new, more stringent building safety regulator’s regime, created by the Building Safety Act 2022. We broadly agree with the Government’s approach.

I echo the points of the noble Baroness, Lady Brinton: I appreciate that the Government talked not just about building safety but about building collapse. I take a moment to express our thoughts and deepest condolences to the people of Turkey and Syria, and our prayers for our brothers, sisters and children there, after the devastating and tragic earthquakes.

The instrument is largely straightforward, but I will take the opportunity to ask the Minister about Regulations 7 and 8, which exclude certain types of building from the definition of “higher risk”. For example, while hotels, hospitals and care homes are already regulated post-occupation by virtue of the Regulatory Reform (Fire Safety) Order 2005, only care homes and hospitals are subject to the design and construction requirements set out in these regulations. Hotels are not. Instead, they are excluded. Given that concerns were raised in the consultation about the exclusion of some buildings from the completed definition, I would be grateful if the Minister could expand on why the Government believe that temporary leisure establishments, as they are termed, do not need to be covered by the more stringent design and construction regime. Why this exception? How are the Government addressing the issue of proportionality while looking at this?

We look forward to seeing how the monitoring takes place. How will the Government attempt to monitor the implementation of the new building safety arrangements? I draw attention to our concerns about whether they will be able to function effectively and whether the new building safety regulator, which the Act makes responsible for all aspects of the new framework, has what it needs to perform all the complex tasks assigned to it.

What other Hackitt review recommendations do the Government intend to address next? We just heard from the noble Baroness, Lady Brinton, about vulnerable groups and evacuation. As always, I look forward to the Minister’s response.

I thank noble Lords for their overall support for these regulations, which I think they will agree are the beginning of an important series of statutory instruments following on from the passing of the Building Safety Act. A number of questions came up and I will try to answer them, but before I do I think we all add our condolences, thoughts and prayers for the people of Turkey and Syria. Their building regulations, and the way their buildings were, were absolutely horrific. We are so lucky that we have Governments who think about this and make sure that we are as safe as possible.

The noble Baroness, Lady Brinton, referred to care homes. We estimate that very few will be higher risk—probably fewer than 10—but, as she quite rightly said, we do not know whether places will build bigger. If they do, we want to make sure that they are built safely. That is what we are doing.

The noble Baroness and the noble Lord, Lord Khan, brought up hotels, which people have shown some concern about. The new regime has to be proportionate in its rigour and implemented where it is most necessary. Hotels are already registered under the fire safety order. It is important to understand that we have to take this in and it has to be a balanced decision.

The noble Baroness asked whether we expect to consider further expanding the scope. The building safety regulator is under a duty to keep the safety of persons in and around buildings constantly under review. If evidence shows that other types of buildings may need to be brought into scope, the regulator can advise the Government accordingly. We, or any other Government, will of course act upon that.

I am sorry that the noble Baroness, Lady Pinnock, is not here to talk about 11 metres, because I know that it is a real issue for her and that she is concerned. As with hotels, the definition of a higher-risk building must be proportionate. Evidence has shown that, in general, the risk from fire increases with height. The decision to set the threshold at 18 metres in height or seven storeys was made following extensive engagement with stakeholders. As the noble Baroness, Lady Brinton, said, when Dame Judith Hackitt looked at this her recommendation was for 30 metres. The Government decided to make it lower. We are doing everything we can in proper proportions.

When I saw the noble Baroness, Lady Brinton, I knew that she would bring up PEEPs—quite rightly. As she said, the Home Office is responsible for government policy on PEEPs and emergency evacuation information-sharing proposals. I understand that there are concerns about the Government’s position on PEEPs. It is important that disabled people are engaged on any proposal. The department will continue to engage and encourage the Home Office on this issue. The Government accepted, in principle, all the recommendations in the Grenfell Tower Inquiry phase 1 report. We recognise the importance of listening to the concerns of disabled residents to come to the right outcome, but we are aware that it is an outstanding decision for the Government. We are working on it with the Home Office. I am sorry that I cannot say any more on that; I wish I could.

I reiterate that these regulations will complete the definition of higher-risk buildings, defining which buildings will be subject to the legal requirements of the new building safety regime. As noble Lords know, these regulations are an important part of the Government’s reforms to ensure that all residents’ homes are a place of safety. I once again thank noble Lords for their contributions.

Motion agreed.