Out-Law News 3 min. read

Student accommodation building safety action urged now


Developers and higher education (HE) providers have been urged to address risks arising under the building safety regime in England ahead of approaching compliance deadlines

Infrastructure expert Chris Owens. who specialises in student accommodation projects, and building safety law specialist Katherine Metcalfe, both of Pinsent Masons, said student accommodation providers need to consider whether they need to register their existing stock ahead of a 1 October 2023 deadline and added that, in respect of new student accommodation development, developers and HE providers need to make allowances for building safety regulatory compliance timelines at the outset of projects.

By 1 October 2023, building owners or leaseholders with responsibility for repair and maintenance of the building’s structure and external walls must register occupied ‘higher-risk buildings’ in England. Failure to do so is a criminal offence.

‘Higher-risk buildings’ are defined under the Building Safety Act 2022 as buildings in England containing at least two residential units and which either measure at least 18 metres in height or are at least seven storeys tall. The government has the power to amend the thresholds.

Owens said a significant proportion of existing student accommodation will be considered to be ‘higher-risk buildings’ under the legislation. Metcalfe said where that is the case, owners or leaseholders for those buildings will not only need to ensure they meet the registration deadline but also prepare now to meet further requirements they will be asked to meet by the building safety regulator, the Health and Safety Executive (HSE), next year.

Metcalfe said: “The HSE intends to start inviting principal accountable persons (PAPs) to submit a safety case report and apply for a building assessment certificate from 1 April 2024. They will take a risk-based approach to prioritising buildings. The risk profile of student accommodation puts it higher up the list. It is really important to start preparing now – duty holders won’t have enough time if they wait for contact from the HSE.”

New-build projects subject to the building safety regime will need to pass through three regulatory ‘gateways’: at the planning stage; before development works can begin and; before the building can be occupied. The HSE must be satisfied that the conditions to each gateway have been met before the building can proceed to the next gateway. The HSE could take up to three months to approve passage through each gateway from the point at which they have sufficient information from the developer.

The regulatory gateway requirements are being introduced in stages. The gateway at the planning stage is already in force but provisions for the operation of gateways two and three have still to be enacted. The government is shortly expected to set out transitional arrangements that will apply in respect of building safety up until the new regime is fully in effect.

Owens said: “We are expecting a significant volume of legislation between now and the summer recess in parliament setting out how this will work. Broadly speaking, buildings which have started projects under the current building control system will stick with it to completion.”

“For new student accommodation which will pass through gateways two and three, the gateway requirements have the potential to significantly impact on target completion dates to align with the academic year. Additional time will need to be built in to accommodate the building safety regulator considering applications for approval,” he said.

“The potential 12-week window for sign-off at gateway three will be a real concern to developers and universities given students arrive at a fixed point in time every year. Whilst the onus will be on the contractor to programme for this and submit early, there is a question to be addressed over who should take the risk of HSE not responding in time,” he said.

Owens said there are other issues that HE institutions and accommodation providers will also need to address contractually in respect of building safety risk.

“Universities will want to be clear from a reputational and health and safety perspective as to what their accommodation partners are doing around the safety case where they have nominations agreements and leases with third party providers,” Owens said.

“Parties should also consider whether their existing contracts need to be updated to specifically take account of the latest developments, rather than just relying on generic obligations to comply with the law. This is particularly the case where there both the university and its partner might be accountable persons – such as where they both have obligations to repair common parts of a building – in which case a clear delineation of duties would be helpful to document,” he said.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.