The passing of the Building Safety Act 2022 ("the Act”) dramatically changed the legal and regulatory landscape governing buildings in the UK.
The Act itself followed the Hackitt Report in 2018, which was commissioned in response to the devastating Grenfell Tower disaster in 2017. The Act came into force on 1 April 2023, with a trickle of secondary legislation subsequently bringing various provisions into force. The result is an extensively revised legal framework.
Higher Risk Buildings
One of the key changes brought about by the Act is the new regime impacting “higher risk buildings” (HRBs). In essence, HRBs are any building which is:
18m or more in height or has seven or more stories; and
contains at least two residential units (a unit is separately defined as “a dwelling or any other unit of living accommodation”).
Hotels and the Act in England and Wales
This begs the question: is a hotel classified as an HRB?
The relevant secondary legislation relating to HRBs is the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023. Regulation 8(2) states that hotels are excluded from the Act.
That said, this exclusion only applies to a standalone building which is used entirely as a hotel. It may appear as if there is a straightforward exclusion for hotels under the Act, but this is not the case. For example, one common scenario where a hotel would be subject to the Act is where such a hotel forms part of a wider mixed used development. In this scenario, if a hotel is in the same building as a premises which is classified as an HRB, the hotel would also be subject to the HRB regime.
For the HRB regime to bite, the hotel must be considered a part of the same building as the HRB and not be situated in an “independent section”. An independent section is not explicitly defined, however, government guidance states that factors indicating independence include having no access to another section of the building and only having access to the building which does not contain a residential unit.
It should also be noted that a hotel is not explicitly defined in the Act or HRBs. That said, government guidance provides that a hotel is a building “which provides overnight accommodation for customers for leisure or business”.
An important thing to note is that while hotels and hostels are generally excluded from the Act, the government has indicated that it does not consider serviced apartments as meeting the exclusion requirements. What is not clear, is whether “aparthotels” or similar units of self-catering accommodation units will be excluded. This will need to be reviewed on a case-by-case basis, taking into account the nature and specific working practices of the development.
Another common situation which may bring an independent hotel development within the remit of the Act is where accommodation for hotel workers is housed within the same building as the hotel accommodation. If the HRB criteria noted above are satisfied and permanent accommodation for staff is contained within the same building, this may classify the entire building as an HRB and thus render it subject to the Act.
What effect does the Act have on hotels
If a hotel satisfies the criteria detailed above, it will be subject to the Act. The Act imposes several obligations which must be borne in mind. During the construction phase, the developers, landowners, designers, and contractors will be appointed “duty holders” under the Act.
These parties will have duties to ensure the safety of the hotel. In particular, the developer must:
obtain new Gateway 2 and 3 certificates, which form building control approvals and completion certificates;
certain safety information relating to the design and construction of the hotel (known as the golden thread) must be stored in a secure electronic system; and
take reasonable steps to ensure the competence of the principal designer and contractor.
It should also be noted that outside of the Act, in terms of the Building etc (Amendment) (England) Regulations 2022, hotels in England are prohibited from using combustible materials in external walls of buildings of 18m or more in height.
The Scottish position
The Act itself has limited application in Scotland. The provisions that do apply in Scotland are generally of a legal nature, such as extending the limitation period under the Prescription and Limitation (Scotland) Act 1972 to 15 years in respect of cladding deficiencies. Additionally, the Scottish Parliament was granted powers to pass regulations governing the supply and marketing of construction products. While these may lead to situations in set scenarios in Scotland, the HRB regime does not apply.
The Scottish Government has, however, recently commenced a public consultation on its Housing (Cladding Remediation) (Scotland) Bill. The Bill in its current form generally affects residential properties, but we will wait to see whether this is expanded upon in future iterations of the Bill to cover hotel developments.
Conclusion
The passing of the Act has undoubtedly heralded significant change in the regulatory landscape for buildings in England and Wales. While the general position is that hotels are excluded from the regulations, there are scenarios where a building may fall within the Act, particularly when it is part of a mixed-use development. However, there are situations such as aparthotels, worker accommodation, and even long-term guests (commentators are divided on how such guests should be treated) which are not clear cut.
From a Scottish perspective, the Act generally does not apply, however there may be further changes to the Scottish landscape in the future. The key takeaway is that, as every hotel development is unique, advice should be sought on a case-by-case basis as to whether a development is caught by the Act. While exclusions do exist for hotels, these do not apply in every scenario and detailed advice should be sought to ensure your development is on the right side of the regulations and ensure the latest Scottish position is followed.
If this article has raised any questions or queries for you, please contact our real estate and infrastructure team.