The Building Safety Act 2022 introduced robust regulatory hurdles to improve safety for higher-risk buildings of at least 18m tall or seven storeys high, and contain two or more residential units. These HRBs trigger specific Gateway 2 and Gateway 3 requirements through the Building Safety Regulator, with the Gateway approval process currently known to be resulting project delays in some cases spanning more than a year.

However, under the 2022 Act, an independent section is a clearly defined part of an HRB that can be treated separately from the residential elements for regulatory purposes. In practice, these are usually commercial or retail areas within a mixed-use or mostly residential HRB.

This independent section designation allows commercial spaces within HRBs to revert to standard building control procedures, using registered building control approvers or the local authority, as opposed to the BSR.

The commercial impact

Commercial space is regularly subject to time pressure, with tenants looking to fit out and trade or utilise the space as quickly as possible.

Should delays in achieving statutory approval be experienced, the financial implications can be substantial.

Building owners are increasingly faced with tenants requesting extended rent-free periods – sometimes six months or more – to compensate for Gateway approval delays. For a coffee shop operator, which could traditionally complete a fit-out in four to five weeks, waiting nine to 18 months for regulatory approval is commercially unviable.

Real-world applications

Independent sections aren’t limited by size or commercial use, provided they don’t include direct access to residential accommodation. Examples include:

• High street retail units with flats above
• Office space with residential premises above
• Shopping centres with residential towers above
• Car parks beneath residential developments
• Superstores with residential accommodation overhead.

The key requirement is demonstrating genuine separation from residential areas, structurally and operationally, including fire compartmentation in accordance with an assets fire strategy.

Simple solutions

The remediation measures required to achieve independent section status can be surprisingly minimal. In one case, a building required only the installation of access control systems on fire escape doors between commercial and residential areas to achieve the designation.

A simple fix was to put access control on doors to create a barrier. That needed regulatory approval initially, but once completed, the demise could be completed as an independent section.

The self-certification process

A common misunderstanding exists around the approval process, with many believing the BSR must sign off on independent section status. This isn’t the case: the power lies entirely with the principal accountable person.

Independent section status operates through self-certification by the PAP, who must provide a report stating that specific building areas meet the 2022 Act’s requirements.

However, to determine this, institutional investors and building owners often require a physical survey and the accompanying report, with the comfort of professional validation and indemnity from a chartered building surveyor to support this certification.

Professional assessment is key

While the concept appears straightforward, diligent assessment requires expert interpretation of the 2022 Act’s requirements against real-world building configurations. The Act’s diagrams show simple box structures that rarely reflect the complexity of actual mixed-use developments.

Professional validation surveys support and provide the necessary documentation to support self-certification. These reports can also identify remediation measures where buildings don’t currently meet independent section criteria.

Beyond compliance

Independent section designation offers benefits beyond regulatory compliance, such as enhanced marketability for commercial spaces; increased asset value through operational flexibility; reduced void periods by eliminating Gateway delays; and competitive advantage in occupier negotiations.

The designation is also becoming increasingly important in due diligence processes, with investors and occupiers starting to factor independent section status into their decision-making.

It also offers the wider benefit of easing pressure on the BSR, freeing resources to focus its oversight on the sections that meet the definition of a HRB.

Looking ahead

With many industry observers predicting expansion of the 2022 Act’s scope to cover buildings over 11m (potentially affecting much of the UK’s Victorian high street architecture), understanding and implementing independent section strategies is set to become increasingly valuable for mixed-use property owners.

Reviewing portfolios now, whether through lease events, vacancy or redevelopment, will pay dividends.

Delivering real efficiencies

Independent sections are a legitimate part of the regulatory framework that, when understood and applied, can deliver real efficiencies while maintaining safety standards.

Designed to allow regulators to focus resources on genuinely high-risk residential elements, while enabling commercial activities to proceed efficiently, understanding and implementing this designation can deliver significant operational and financial benefits for building owners with mixed-use properties.

By Amy Farr, Partner and Head of Building Safety & Construction Compliance