HRB or not HRB, or Life on the Edge – Edge Data Centres and Higher Risk Buildings

In England the new regime under the Building Safety Act 2022 applies to virtually all buildings and enhanced obligations apply to Higher Risk Buildings (HRBs). These obligations apply during construction and while the building is occupied if substantive work is carried out within the building. The Building Safety Act has changed the landscape of the construction industry- contracts have to be updated, procurement processes have to be amended, and timelines have to be adjusted. 

The first thing to establish is if there is an HRB within the development. In simple terms, an HRB is a building that is 18 metres, or seven storeys high, and which contains two or more residential units. There are detailed rules about how to measure the height of the building and what counts as a storey, so buildings that may appear to be HRBs may not actually be HRBs, and vice versa.

On the face of it, traditional large data centre developments seem to escape the extra rigours of the HRB requirements under the Building Safety Act because typically these are standalone, low-rise, non-residential structures some distance away from densely populated areas. However, that may not always be the case, and parties should ensure that projects that could be seen to be combined with an HRB are carefully reviewed from inception.  For example, edge data centres or inner cities co-location data centres may be built as part of larger commercial developments, or located into multi-storey buildings. As a result, developers, operators and data centre customers undertaking fit-out works should be particularly aware of these enhanced statutory obligations and how they may apply.

The starting point is the snappily named Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (Regulations). These regulations are supplemented by government guidance and deal differently with the design and construction phase, and the in-occupation phase, of an HRB.

If there is an HRB within the development, the next issue to consider is whether the HRB is attached to other buildings in any way, for example by a podium, or there might be a mixture of HRBs and commercial buildings built over a shared structure, such as a shopping centre or car park. If the HRB is not attached, then it will not affect the other buildings in the development and can be treated separately, and the developers and operators only need to concern themselves with the general obligations under the Building Safety Act 2022. However, if it is attached, the situation immediately becomes more complicated.

In the construction phase, all of the structures attached to the HRB will be considered to be one structure and to be an HRB. This means that the whole structure will be subject to the enhanced HRB regime during its design and construction. So, if a data centre forms part of the wider attached structure, its design and construction will be subject to the HRB regime and will have to obtain approval from the Building Safety Regulator at three ‘Gateways’ to ensure building safety requirements have been met and before the project can progress (at planning, pre-construction and at completion of construction- but before occupation). This will have to be factored into the development programme and can extend the project timeline. 

Once built, depending on how the structures are divided or linked together, different parts of the wider building structure may be considered as ‘independent buildings’ for the purposes of the HRB in-occupation regime, if they come within the definition of an independent section. Independent sections can be treated as if they are buildings in their own right, and if they are not HRBs, they will not come within the HRB in-occupation regime and will not have to comply with the enhanced requirements. 

Carrying out substantive works within an HRB is also subject to enhanced Building Safety Act requirements, so before carrying out work in an existing structure that is linked in some way to an HRB or may be an HRB, it is essential to check its status. Substantive works may include common data centre fit-out or retrofitting works.  

This is a brief summary of a more complicated set of rules, and each individual situation will need careful consideration and analysis at the earliest possible stage. Failing to comply with the BSA may be a criminal offence.

The Building Safety Act 2022 has other implications in relation to the roles of each party involved in the development, particularly those set out as ‘dutyholders’ (Building Regulations 2010). We have set out a list of dutyholders and a brief overview of their responsibilities below. 

The liability for these roles cannot be delegated and will remain with the relevant party. 

It's important to make sure that the parties being appointed on any project are competent and experienced enough to carry out the works in the manner required, but the Building Safety Act 2022 has put higher obligations on the clients in terms of making sure that the parties they appoint are suitable. For example, clients need to have taken all reasonable steps to satisfy themselves that the principal contractor is "competent" (both generally and to carry out the role of principal contractor) and able to satisfy the general duty to "plan, manage and monitor". A client must not appoint anyone who is not competent, or they run the risk of enforcement action and on an HRB project, the prospect of failure to progress through a Gateway. On an HRB project the client also needs to investigate whether a serious sanction has occurred to the relevant party that is being appointed in the past 5 years.

If an individual is being appointed, they must have the skills, knowledge, experience and behaviours necessary to carry out the building work or the design (as applicable) in accordance with all relevant requirements. If the appointed party is not an individual, then they must have the organisational capability (and for example, having suitable policies and procedures and resources in place to ensure its employees have the relevant and appropriate skills, knowledge, experience and behaviours) to meet the same requirements. The British Standards Institute has provided competency standards that help to evidence that these competency checks have taken place. We recommend that in any case, clients consider competency at the start of the project and on an ongoing basis- building competency assessments into the procurement process are likely to become commonplace on projects where HRBs are involved. We have worked with clients to create a competency questionnaire to assist with streamlining their due diligence process and to act as a convenient record that can be disclosed to the Building Safety Regulatory where necessary. If you need any further advice or assistance with navigating this regime, please do contact our team directly.

Dutyholders and their responsibilities:

"client” means any person for whom a project is carried out. The client is responsible for making sure that the people appointed on the project are competent and can comply with the Building Regulations. On data centre developments it is not unusual for works to be split up into stages or parts such as powered shell and fit-out of individual data halls. In this or similar scenario there may be multiple "clients" and the arrangements will need to be carefully considered to ensure the roles and duties are unambiguously defined and understood. 

"contractor" means any person who, in the course of a business, carries out, manages or controls any building work (and which can include a client). The contractor has to satisfy itself that the client is aware of its duties under the Building Regulations before it starts working and must ensure the construction work meets all the relevant requirements;

"designer" means any person who in the course of a business either carries out any design work, or arranges for, or instructs, any person under their control to do so. The designer also has to satisfy itself that the client is aware of its duties under the Building Regulations before it starts working and has to take all reasonable steps to ensure the design complies with the relevant requirements. 

"principal contractor" means the contractor appointed to perform the duties of a principal contractor under regulation 11D. During the construction phase the principal contractor will have control of the overall project and overall responsibility for complying with the Building Regulations. They will have to plan, manage and monitor all the works and co-ordinate it in order to comply with the Building Regulations;

"principal designer" means the designer appointed to perform the duties of a principal designer under regulation 11D. The principal designer is responsible for ensuring compliance with the Building Regulations during the design phase and the have to monitor and manage design work and co-ordinate it in order to comply with the Building Regulations.

If the project is an HRB then (Building Safety Act 2022)

"accountable person" means a person who holds a legal estate in possession in any part of the common parts, or person who does not hold the legal estate, but who is under a repairing obligation for any part of the common parts. The accountable person has to assess and manage the risks posed to people in and about the building from structural failure or the spread of fire in the parts of the building they are responsible for. This includes reporting safety occurrences to the Building Safety Regulator under a mandatory occurrence reporting system, carry out duties relating to the resident engagement strategy, keep ‘golden thread information’ and provide building information to the relevant individuals and organisations required under the statute.

If there are multiple accountable persons, they must work together.

“principal accountable person” means where there is only one accountable person, that person will be the principal accountable person. Otherwise, it is the accountable person who holds a legal estate in possession in the relevant parts of the structure and exterior of the building, or person who does not hold the legal estate, but who is under a repairing obligation for any part of the common parts. They must register the building with the Building Safety Regulator (and notify them of any changes) and make sure that the structural and fire safety risks are managed properly for the whole building. They have several further obligations, including checking that the accountable person(s) has complied with various obligations and they also have to:

• prepare and update the building’s safety case report
• report safety occurrences to the Building Safety Regulator
• operate the mandatory occurrence reporting system
• operate a complaints system
• display required information and documentation clearly within the building
• prepare and update a resident engagement strategy
• apply for a building assessment certificate when told to do so by the Building Safety Regulator
• provide building information to relevant individuals and organisations.