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DLUHC Guidance: Criteria for being a higher-risk building during the occupation phase of the new higher-risk regime

This guidance relates to the legal criteria for determining whether a building is considered a higher-risk building under the Building Safety Act 2022 and the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, during the occupation phase of the higher-risk egime only.

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This guidance sets out the criteria for a building to be a higher-risk building during the occupation phase of the higher-risk regime. Higher-risk buildings are subject to the requirements of the new higher-risk regime directly overseen by the Building Safety Regulator (the Regulator).

Higher-risk buildings, for the in-occupation requirements under Part 4 of the Building Safety Act 2022 (the Act), are defined in section 65 of the Act and the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (the Regulations).

The obligations in Part 4 of the Act largely apply to occupied buildings and this is, therefore, referred to as the ‘in-occupation’ part of the regime. To understand whether a building is a higher-risk building, the Act and the Regulations need to be considered together.

For the in-occupation part of the regime, higher-risk buildings are defined as buildings with at least two residential units which are at least 18 metres in height or have at least seven storeys. The definition of “higher-risk building” is only for the purpose of the new higher-risk regime. The definitions in the Act and Regulations do not amend definitions in other legislation or definitions of building in other parts of the Act, such as the definition of “relevant building” under section 117 of the Act which defines a ‘relevant building’ for the purpose of the leaseholder protections under sections 119 to 125 and Schedule 8 of the Act.

This guidance document includes the relevant text from the Act and Regulations with explanations and diagrams. It is a tool to help potential principal accountable persons and accountable persons determine if the building they are responsible for is a higher-risk building. This guidance and the specifics and circumstances of your building need to be considered by you when discharging your duties under the Act and the Regulations. Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this.

In addition to becoming a higher-risk building under the Act and the Regulations, your building may also be subject to other legislation and statutory duties, such as the Regulatory Reform (Fire Safety) Order 2005. You will need to work with the relevant dutyholders in the building to ensure it is safe.