John Forde reviews the first year of the Gateways regime for higher-risk buildings and shares tips for dealing with approval setbacks.
It’s been nine months since the Building Safety Regulator (BSR) became the building control authority for all higher-risk buildings (HRBs) in England, overseeing the new Building Control approval (known as ‘Gateways’) regime for the construction and refurbishment of those buildings.
A regulatory change of this magnitude, in an industry that is often slow to innovate, was never going to be easy – and recent statistics are concerning. Between 1 October 2023 and 16 September 2024, the BSR received 1,018 Building Control approval (i.e. Gateway 2) applications for HRB work, of which only 146 have been approved.
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Many clients admit that the complexity of the new regime means that Gateways work (especially for existing HRBs) has gone into the "too hard" basket, while new-build and asset management teams focus on other workstreams.
These delays cannot last forever, especially considering the backlog of urgent remedial work to existing HRBs – most of which will need to secure Gateways approval.
Addressing the backlog
At Trowers & Hamlins’ fifth annual Building Safety conference in October this year, Tim Galloway, the deputy director of the BSR’s building safety programme, acknowledged that the new regime had been challenging and that turnaround of Gateways applications was “not where we want to be”.
He advised Gateway 2 applicants to work on the basis that the BSR would take 18 weeks to determine each application. (The statutory deadlines are 12 weeks for new-build applications and eight weeks for works to existing HRBs).
Galloway explained that the regulator was working on addressing the backlog by recruiting and training new case officers and would prioritise applications for cladding remediation projects.
Caseworkers will keep applicants up to date on the status of their applications and will aim to confirm whether or not an application is valid within two days of receipt. Galloway estimated the BSR would be in a better position to meet the statutory deadlines by March 2025.
In the meantime, how do clients and professional teams deal with potential delays to Gateway approvals?
Invalid applications
The first step is to ensure that applications are complete and correct. Galloway said that around 20% of Gateway 2 applications are rejected because they are invalid (i.e. they don’t meet the statutory requirements of the application process).
A key failing is applicants’ inability to demonstrate that the design complies with the legislative requirements. Galloway said this should be demonstrated via a coherent narrative, rather than simply stating that the project complies with the regulations.
The requirement to demonstrate compliance is “a cultural shift”, he added, and the industry needs to move away from viewing Building Control as an “inconvenience” or a box to be ticked.
Many clients are, understandably, relying on third-party consultants to help them navigate the new regime. That said, many so-called building safety ‘experts’ appear to be no better informed than their clients about the minutiae of the regulations, so confusion remains widespread.
Anticipating delays
In terms of project management, clients and professional teams should be scheduling Gateways works programmes to anticipate delays in the statutory approval process. Most standard forms of construction contracts allow contractors an extension of time for delays in statutory approval, but clients should also consider allowing similar provisions for key subcontractors and design consultants.
Clients should also be having open conversations with their professional teams about the cost implications of potential delays, especially for sourcing materials and the supply chain, and make allowances for cost fluctuations in their contracts.
Gateways projects should ideally look to retain the same contractors and designers for the entire project, to ensure oversight over building safety compliance. However, where long delays prompt parties to exit the project, clients should obtain robust warranties for work undertaken to date and ensure that replacement contractors and designers are fully briefed on the project to prevent any gaps in compliance.
Exemptions
For urgent works to existing HRBs that cannot wait, clients can consider the partial exemption for “emergency repairs”, which are “necessary to be carried out as a matter of urgency due to the risk to health, safety or welfare of persons in or about the building”.
This exemption allows works to start without getting Gateway 2 approval in advance. However, clients must notify the BSR that the work has commenced and submit a “regularisation certificate” when the works are complete. Clients relying on this exemption must still ensure that their professional teams are competent and maintain the golden thread of information for the project.
Ultimately, the building industry must get to grips with the Gateways regime, even in its current state. Failure to engage with the regulatory process will create further delays to works that are urgently required to create the safer built environment envisaged in Dame Judith Hackitt's Building a Safer Future report.
John Forde is a managing associate in the projects and construction department at Trowers & Hamlins.
