Wales extends building safety rules beyond height limits

The Building Safety (Wales) Bill, which was passed by the Senedd on 10 March, creates a new in-occupation safety regime for residential buildings in Wales. Unlike the Building Safety Act (BSA) 2022, which applies primarily to buildings of at least 18 metres or seven storeys, the bill covers multi-occupied residential buildings of any height and forms part of the Welsh government's wider programme of reforms following the Grenfell Tower disaster. 

The bill is expected to come into force in phases from 2027. Separate regulations covering the design and construction phase come into force in July, while the focus of the bill is on the in-occupation duties. 

A wider net than England

The bill applies to all multi-occupied residential buildings containing two or more residential units, regardless of height. Duties increase in stringency as height, and therefore risk increases. This is achieved through a three-tier system.

Category one covers buildings of at least 18 metres or seven storeys; category two covers buildings less than that threshold but at least 11 metres or five storeys. Category three covers those below 11 or five storeys. 

Around 180 existing buildings are expected to fall within category one, 450 within category two, and approximately 51,000 within category three. Buildings in categories one and two are subject to both fire and structural safety duties and must be registered with the building safety authority; those in category three are subject to fire safety duties only.

Another notable difference from England is the enforcement model: rather than following England's decision to create a new Building Safety Regulator, the bill grants Welsh local authorities new functions to regulate and enforce duties. Enforcement measures range from requesting information and issuing compliance and prohibition notices to imposing sanctions including fines and imprisonment.

Who is responsible?

Following the approach taken in the BSA, the Welsh bill introduces principal duty holder roles: the accountable person (AP) and the principal AP (PAP).

The AP is whoever owns, or has a relevant repairing obligation in relation to any part of the common parts of a building. For buildings with more than one AP, the PAP is the one who owns or holds  a relevant repairing obligation in relation to the external structure. Where there is only one AP, that person is also the PAP.

PAPs carry the broadest duties, including registering categories one and two buildings with the relevant local authority. For category one buildings, the PAP must apply for a building certificate from the building safety authority and renew it every five years; prepare a safety case report and update it every five years with the building's fire and structural safety assessments and the steps taken by each AP to ensure the building is safe. 

PAPs also need to set up an occurrence recording system to record information about incidents, prepare and engage with a residents' engagement strategy to promote the participation of residents in decisions, and establish a complaints system for residents. 

The duties on PAPs for categories two and three buildings are less onerous but include maintaining up-to-date building safety information, co-operating with all APs, and operating a residents' complaints system. 

Safety, accountability and resident voice

Three principles underpin the bill. On safety, fire risk assessments must be carried out by competent persons, with criminal penalties for non-compliance. Structural risk assessments are also required. On accountability, the legislation establishes clear legal responsibilities for those who manage buildings. On resident voice, the bill gives residents routes of redress and a stronger say in decisions affecting their homes.

Fire risk assessments

A fire safety risk includes both the outbreak of a fire, whether accidental or deliberate, and its spread within any part of the building. An AP must take all reasonable steps, including keeping a written record of planned actions, to prevent a fire safety risk materialising in the part of the building in which they are responsible and to reduce the severity of any incident that arises. In addition, the PAP must ensure a fire risk assessment is carried out and reviewed at least once a year.

Structural risk assessments

A structural safety risk means a risk to the safety of people in or about the building arising from structural failure affecting any part of it. For categories one and two, APs must take all reasonable steps to prevent any risk arising from structural failure affecting any part of the building materialising and reduce the severity of any resulting incident. This includes ensuring structural risk assessments are carried out at regular intervals.

Residents' rights and duties

The bill places duties on adult residents and owners of residential units not to act in a way that creates a significant chance of a fire safety risk. In categories one and two, this extend to structural risks materialising. APs have powers to enter residential units to check compliance. They may issue a warning notice for breach of a duty by residents or apply to a tribunal for a contravention order requiring a resident to take specified steps.

Houses in multiple occupation

The bill applies similar duties to the occupiers and landlords of in-scope houses in multiple occupation;  in these, the landlord or whoever is responsible for management must ensure a fire risk assessment is carried out. This reflects the principle that fire safety risks during occupation are not determined solely by a building's height.

Remediation powers

The Building Safety Act 2022 introduced various new causes of action which do not currently apply in Wales, including remediation order, which require a specified person to carry out works to remedy defects at a relevant building; and remediation contribution orders, requiring one or more specified persons to contribute to costs of remedying relevant defects. 

Prior to the bill, the Welsh government's position was that equivalent provisions were unnecessary in Wales, on the basis that it would take non-compliant developers to court on residents' behalf. Following significant pressure from leaseholders, campaigners and Senedd members, the Welsh government changed course and introduced equivalent powers in sections 114 and 115 respectively. 

Welsh hallmark 

While the Welsh provisions are clearly modelled on the English regime, they are drafted in a more flexible and “enabling” way. Welsh ministers are given wider powers to define which buildings and defects are in scope, and how far back in time the regime applies. This will allow Wales to diverge from the English 11-metre and five-‑storey threshold or 30‑year look‑back period if policy shifts. 

The Welsh approach to remediation contribution orders is also slightly broader in who can be required to pay, particularly group companies and associates behind  special purpose vehicles, and who can receive contributions including where public bodies or other third‑party funders have met remediation costs.
Both regimes are aimed to protect leaseholders and shift the financial burden towards those who developed, owned or profited from defective buildings, but the mechanics differ. 

In England, remediation contribution orders operate within a highly prescriptive framework of qualifying leases, caps and detailed service charge rules; Wales, by contrast, hard‑wires the core principles into primary legislation and leaves more of the detail to be set in Welsh regulations and guidance. Over time, that is likely to produce similar outcomes in policy terms, but with a distinctly Welsh flavour in how orders are targeted and how they interact with funding and service charge arrangements.

Once the Building Safety Wales Bill receives Royal Assent, the new remediation powers will be activated by Welsh ministers through separate commencement regulations. Draft versions of those regulations must be laid before the Senedd within nine months of Royal Assent, and tribunal procedures will need to be put in place before remediation orders and remediation contribution orders can be applied for in Wales.

Osborne Clarke comment

The bill signals a distinct Welsh approach to building safety in occupied residential buildings: a risk-led, occupation-focused framework that looks beyond height thresholds to create a culture of continual safety management and resident involvement.

For building owners, managers and developers with assets in Wales, the message is clear: compliance frameworks built around the BSA's 18-metre threshold will be sufficient for Welsh assets. The bill applies to all multi-occupied residential buildings regardless of height, and duties vary across three categories. A portfolio review across all three categories is an essential first step for many in the sector.

As with the BSA, we expect much of the real impact in Wales to be shaped by secondary legislation, guidance and early tribunal decisions, which is when we are likely to see how far Wales in practice diverges from England. We also expect Welsh government and the new regulator to provide opportunities for the sector to engage on proportionality and implementation, particularly around the scope of buildings, the use of remediation orders and contribution orders, and the treatment of historic defects.

Proactive monitoring and early planning around governance, resident engagement and remediation funding for Welsh assets will be for those wanting to stay ahead of a regime that may look familiar on paper but is likely to develop a distinctly Welsh character in practice.

We are closely tracking the implementation of the Welsh building safety regime and will continue to update clients as the detailed regulations emerge. If you would like to discuss how these changes may affect your portfolio, please get in touch with one of our specialists.