The HRB Regime: Industry Impact

A recent question put to the Ministry for Housing, Communities, and Local Government ("MHCLG") has shed light on the practicalities of implementing the new Higher Risk Building Regime (the "HRB Regime").

The regulatory framework

A higher risk building ("HRB") is one which is at least 18m in height (or 7 storeys) and contains at least two residential units. Following the Grenfell tower tragedy the HRB Regime, introduced by the Building Safety Act 2022 ("BSA"), aims to ensure that HRBs are subject to a more stringent safety regulation. 

As part of the HRB Regime, three 'gateways' have been introduced which ensure a rigorous oversight into the three main stages of a building's development: planning, before construction begins and occupation (for further information on the HRB regime and gateways click here.) In summary, Gateway 1 integrates fire safety into planning, Gateway 2 requires building control approval before construction, and Gateway 3 mandates that the building cannot be occupied until a completion certificate is issued, confirming it was built according to the approved plans. 

Gateways 2 and 3 are 'hold points' and require an application to be made in order to demonstrate compliance. Importantly, occupation of the HRB is only lawful once a completion certificate has been issued at Gateway 3.

The reality 

In answer to a question tabled in September 2024, the Labour MP for Bethnal Green and Stepney Rushanara Ali provided an insight into the reality of the HRB Regime in the period up to 30 June 2024. 

It was stated that the BSR received 62 applications for the construction and development of new HRBs. Of these, only 4 were determined within the 12-week statutory review period set out in the BSA. 10 of the 62 were refused and 22 were granted an extension. 

For those existing HRBs requiring works there were 606 applications made of which only 12 were determined within the 8-week statutory review period with 271 being granted an extension. Notably, 260 out of those 606 applications were refused. 

In consideration of why an application may be refused, Ms. Rushanara noted that:

"An application can initially be invalidated when an applicant has not provided the most basic administrative documents or followed the process that demonstrates they comply with the Building Regulations. This is not a formal refusal and provides the applicant with the opportunity to reconsider what documentation and information is required for the application. 

A refusal is when an application fails to demonstrate compliance with the Building Regulations after being assessed".

Information in respect of Gateway 3 applications was also provided. As at June 2024, there were 14 applications for completion certificates (at Gateway 3) for existing HRBs and of these, 4 were refused, indicating that those buildings were not yet deemed suitable for occupancy.

Interestingly, a more recent question was tabled in November 2024 and Alex Norris (Labour MP for Nottingham North and Kimberley) was asked what steps are being taken to ensure that the building safety regulator is sufficiently resourced. Mr Norris' response was that the Government has "ramped up work with local authorities and regulators to speed up remediation and will set out a Remediation Acceleration plan shortly", adding that "funding provided to the BSR remains in line with best regulatory practice".

Comment

We await further details of the proposed "Remediation Acceleration Plan", as well as updated statistics for those applications made after June 2024.

The recent insights by Ms. Rushanara do suggest a rigorous scrutiny at each Gateway by the building safety regulator. Ultimately, the high standard being set will ensure the HRB Regime is effective in protecting leaseholders and ensuring their homes are safe. 

However, the potential impact on the wider industry could be substantial, particularly for professionals involved in drafting construction contracts and developing construction programmes, given the significant delays that extensions or refusals may cause.