Building safety: Gateway consultation open for comment

The Building Safety Act 2022 received royal assent on 28 April 2022, with its provisions coming into force over the following 18-month period. One of the key elements of the Act is the introduction of specific building control requirements for higher-risk buildings (HRB) providing enhanced procedures for building control, strengthened regulatory oversight and rigorous inspection of building regulation compliance before, during and on completion of building work.  Developers will need to be familiar with the new stop/go decision points (described as “gateways”), introduced by the Act, at which building safety and building regulation compliance is reviewed.  This article focuses on the current consultation on the proposed regulations for gateways 2 and 3 to take effect in England. Developments in Wales will be subject to their own regime. Gateway 1 forms part of the planning legislation and came into force in August 2021.  Higher-risk buildings The new gateways regime applies to HRB which are: At least 18m in height or with at least seven storeys; and Of a description specified in regulations, which is expected to include buildings containing at least two dwellings; care homes and hospitals. The building control authority for HRBs will be the Building Safety Regulator.  The Act allows for further regulations to introduce a new duty holder regime focused on building regulation compliance for all work – not just work to HRBs.  The terminology for the duty holders will follow that used in the Construction (Design and Management) Regulations 2015.  Gateway 2 Before construction: A developer must submit a building control approval application to the regulator with plans and prescribed documents. Building control approval must be obtained before building work starts.  There are proposals to allow for a staged approval process, where a developer cannot provide all the required information with its initial application but this will result in multiple approval stages. On receipt of an application, the regulator will consider it with its multi-disciplinary team, including fire and rescue authorities and sewerage undertakers. The consultation proposes that the regulator will have a 12-week period in which to determine the application. Where a staged approach is adopted, the 12-week approval period will apply for each of the subsequent stages. Extensions to the period for determination can be agreed but unless the regulator has reached a decision, the application is deemed refused. On approval of an application, the regulator will agree an inspection schedule for the construction phase. The regulator must be notified prior to commencement of the works and when each construction stage is reached to allow inspection to take place.  During construction: The regulator can require additional inspections without notice. There will be obligations to report fire and structural safety occurrences (including near misses). There will be robust record-keeping requirements in order to create accurate building information for handover to the building owner at completion (the so-called “golden thread”).  If a developer proposes to deviate from the original building control application, they will need to consider whether the change is “major” or “notifiable”. Both will require a change control application to the regulator. The regulator has six weeks to determine the application for a major change, which cannot proceed without the regulator’s approval. The regulator has 10 working days to consider the application for a notifiable change, and the change can proceed if the regulator has not intervened during that period. Gateway 3 On completion: The developer must submit a completion certificate application to the regulator for approval. The application can be for all the works or a defined part.  The application builds on the building control approval application submitted at gateway but will include compliance declarations from the developer, principal designer and principal contractor. The developer must confirm that to the best of its knowledge the building, as built, complies with all applicable requirements for building regulations. The principal designer and principal contractor must confirm they have taken all reasonable steps to fulfil their responsibilities as duty holders. Where satisfied that the building works comply with applicable building regulations, the regulator will issue a completion certificate for the building as a whole or the specific part. It is proposed that a timescale of 12 weeks will apply for determination of completion certificate applications. Failure to reach a decision or agree an extension will mean the application is deemed refused. Only following approval can the building (or specific part) be registered for occupation. Registration is a separate process to the building control process. It will be an offence to occupy a HRB that has not been registered. Considerations for developers: While the new regulations are still subject to consultation, it seems likely that developers will need to allow considerable additional time for regulator approvals in development programmes.  At the commencement of the work, there will be the challenge for developers and supply chains in maintaining certainty of pricing and programme through the approval period.  During construction, there will be the potential for material additional prolongation costs associated with having to refer changes to the regulator for approval.  At completion, the parties are going to need to address the risk of approval not being obtained and liability (liquidated damages) for delays.  The consultation closes on 12 October 2022 and is available here Gillian Thomas is a partner in the construction and engineering group at Hogan Lovells LLP