Building safety ‘exam’ needs clearer criteria

The long-awaited Planning and Infrastructure Bill has been widely welcomed as a sign that the government is serious about speeding up housebuilding. Yet for all the positivity on the consenting process, the government is silent on the mounting issue of housing delivery amid an unclear and slow regulatory regime for building safety. If Labour is to achieve its mission of building 1.5m new homes by 2029, high-rise urban development will be essential. However, the market continues to be hampered by complex and confusing building safety rules, which have left many sites in a state of paralysis. The gateway regime initiated by the Building Safety Act 2022 has forced a rethink to the sector’s approach to design and construction, causing delays. While these could be passed off as teething problems, they have been exacerbated by “bare-bones” guidance and communication from the Building Safety Regulator. Three years since the Act was passed, the sector finds itself in a near stand-off with the regulator. To move forward, both parties need to be prepared to compromise. The BSR must provide more clarity in terms of what it expects from gateway applications, and initiate a quicker internal tendering process to service applications. For its part, the sector must manage its own expectations over a collaborative process – and invest in adapting to the new system. The challenge of the current guessing game It is difficult to understate the impact the new gateway regime has had on development timelines, creating a major backlog of decisions for the regulator in the 18 months since it came into force. As a snapshot in time, a report from the Purposeful Finance Commission at the beginning of this year found around 90 new high-rise schemes were stuck in a bottleneck awaiting Gateway Two approval. It estimated the regulator is taking an average of 22 weeks to review applications – almost double its originally stated target of three months. This is coming at a huge viability premium, reportedly costing some developers up to £50,000 per week at a time of crippling financial pressures generally within the sector. Delays in reviewing applications are not the only challenge. Design teams are being left frustrated by a dearth of pre-application advice and limited feedback on unsuccessful proposals. This is creating a perfect storm of uncertainty, with speculative plans put forward and refused without a meaningful explanation. Navigating the gateway ‘exam’ The fundamental problem comes down to a mismatch in expectations between the regulator and the wider sector. In February, Andrew Moore, head of operations planning and building control at the BSR told a conference hosted by the Home Builders’ Federation to view the gateways regime as an “exam”, not “coursework”. To put it another way, the regulator sees its role as being to pass or fail applications, not to provide tutoring to increase the pass rate. As the BSR has said recently, it perceives the problem as being that applications either fail to provide the necessary design details to demonstrate compliance with building regulations or provide too much information without structure, signposting or interpretation. The issue with the exam analogy is it implies a longer programme of learning has been available. It is difficult for housebuilders and registered providers to adequately prepare for a test where the grading criteria aren’t yet clear. The BSR has now committed to providing “model answers”, but with timelines yet to be confirmed. It is not clear whether such models will take the form of mock exam answers or further high-level guidance. In the meantime, the sector can take heed of the regulator’s stance and adjust its approach accordingly, which means being prepared to effectively report on compliance. This could be in a manner akin to the early design and access statements and/or standard due diligence reports developers prepare for investors. Further, and in the absence of open dialogue with the regulator, developers should keep a close eye on the increasing amount of secondary legislation, guidance notes and case law coming through the courts.  Delivering safe homes at scale Establishing the boundaries of vast amounts of primary and secondary legislation through test cases is clearly far from ideal and a faster route to bedding in the regime needs to be found. In the short term, the problem may become more acute as the government appears intent on introducing further controls and charges to the housebuilding sector. The recent announcement of a new regulator with oversight of the entire construction industry is particularly concerning given the existing problems with the BSR. Building a large number of safe homes over the next five years is a common objective for the government and developers, but realising this ambition relies on both sides being willing to compromise. For developers, this means sharpening their pencils when proactively engaging with the gateway regime, while the BSR must be clearer on its expectations of what “good” looks like. Charis Beverton is a partner at Winckworth Sherwood