Hugh Rowan, Barrister, and Sam Madge-Wyld explore the application of the BSA 2022 to mixed-use buildings, concentrating on defining Higher-Risk Buildings (HRBs) and excluded properties. They tackle the complexities of identifying HRBs, including height, occupancy, and exclusions. The discussion also addresses the differentiation between “buildings” and “independent sections” within mixed-use structures, using examples to illustrate. Their analysis highlights the challenges of interpreting and advising on regulations for mixed-use buildings under the Building Safety Act.

As with many areas of Property Litigation, the Building Safety Act 2022 (the “Act”) applies only in part to properties that are more properly considered “commercial”. The protections of the Act were largely designed to benefit residential leaseholders, and so commercial leaseholders in many cases will lose out. However, there are some interesting borderline cases, some of which will be explored in this article.  

Higher Risk Mixed-Use Buildings 

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations SI 275/2023 (the “275 Regs”) defines a ‘Higher-Risk Building’ (“HRB”) as being: at least 18 metres in height or has at least 7 storeys; containing at least 2 residential units (or at least 1 in Wales); and is not an ‘excluded’ building. There are some other qualifications that also affect matters such as occupancy.  

In principle therefore, any building with at least two residential units if it meets the height/exclusion requirements could be an HRB falling within the protections and regulation of the Act. Hence, in theory the Act can apply to mixed-use buildings. 

Excluded Buildings 

Regs. 6 & 7 of the 275 Regs exclude the application of the Act to certain defined properties. The 275 Regs as originally enacted provided somewhat vague descriptions which were confused and confusing in their application, however as of 16 January 20241, the list of excluded properties has now been refined and language tightened.  

A building will be excluded from the definition of an HRB (and thereby largely excluded from the Act) if it consists entirely of: a secure residential institution (e.g. prison or young offenders institution); a hotel; military barracks; living accommodation provided by the Ministry of Defence; or, living accommodation for His Majesty’s forces or any visiting force etc. A building will also be ‘excluded’ if it is used for residential and non-residential purposes, and all the living accommodation is provided by the Ministry of Defence.2 

Of particular note, the amended 275 Regs now require the building to consist “entirely” of the above, while it previously only required the building to “contain” e.g. accommodation provided by the Ministry of Defence.  

However, this does raise some interesting points to be determined by the Courts or further regulations. In particular if there are individual units that fall outside the relevant definition. For example: a hotel may contain a night manager’s flat; a military barracks may contain civilian accommodation for service providers; a young offender’s institution may contain staff units for overnight accommodation. It is not, at present, clear what the Courts will make of such borderline cases, however given the draconian regime of the Act it may well have important consequences.  

The guidance published alongside the Act3 lists a number of examples of borderline cases that are not excluded, including: a Shopping centre with at least two residential units; University student accommodation; Boarding accommodation in schools;  

Supported and sheltered accommodation (e.g., domestic abuse refuges, children’s homes); and supported or sheltered homes for older people and those with additional care needs. 

Independent Sections 

Another important feature that affects mixed-use buildings is the Act/275 Regs’ construct of “buildings” vs “independent sections”. Under Reg. 4, a “building” includes: a structure that is not attached to any other; two or more structures that are attached; or an independent section of a (set of) structures.4  

An “independent section” can therefore be a “building” for the purposes of the Act. This begs the question of what constitutes an “independent section.” These are a part of a structure that as its own access, other than emergency access, for people to enter and exit the “wider building;” and, either has no access to any other section, or only has access to another section which does not contain a residential unit.5 

Worked Examples 

Two examples will serve to illustrate the complexities that these definitions throw up. First, take Fig. 1: a seven-storey building. On the First Floor there is a supermarket with no access to the rest of the building. The second and third floor comprise offices, while the fourth to seventh floors comprises a number of residential flats. There is a separate archway leading to the entrance for the offices and flats. Is this an HRB? 

The first question looking at the diagram is: does the basement make a difference? The simple answer is no, as stories below ground level are not included.6 There are two “independent sections” here. Where two or more structures that are attached contains one or more independent sections, each independent section is a “building.” The first floor is one “building” and the second to seventh floors constitute another “building.” 

Note that sharing an “archway” is enough to make all the second to seventh floors one independent section.7  

Nevertheless, our building containing the residential units is only 6 stories not 7, meaning it would not be an HRB. However, this position is expressly envisaged by the 275 Regs, which provide that where an independent section is a “building” under the regulations, then any storey directly beneath the building which is not below ground level is to be counted in determining the number of storeys the building has.8  

Therefore, this is an HRB. 

Fig. 2 shows a similar property but this time the office units are on the seventh floor. Assuming that these offices have their own access (other than emergency access), then dispute having more residential stories than Fig. 1, Fig. 2 is not an HRB. There are only six relevant stories, and the saving regulation discussed in the previous paragraph only applies to storeys beneath the section in question.  

These examples are intended to demonstrate the complexity in determining what are and what are not HRBs. There are a number of amorphous concepts still present in the current version of the 275 Regs, for example: what exactly is meant or intended by a shared “doorway, archway or similar opening”.9 Extreme caution will need to be taken when advising on these matters, not least as the 275 Regs are prone to regular amendments and updates.