‘Gateway’ regime for construction of higher-risk buildings in England confirmed

Higher-risk buildings are defined under the 2022 Building Safety Act as buildings in England containing at least two residential units and which either measure at least 18 metres in height or are at least seven storeys tall, and hospitals and care homes which meet the same height threshold.

From 1 October, the development of higher-risk buildings will be subject to a new building safety regime that is shaped around the concept of regulatory ‘gateways’. After that date, new developments for higher-risk buildings will have to be approved by the building safety regulator, the Health and Safety Executive (HSE), at three core stages of the development process – at the planning stage; prior to construction; and upon the completion of works and prior to buildings being occupied.

While ‘gateway one’ in respect of the planning stage is already in force, industry has been awaiting clarity on the process, and associated requirements to be met, for the other two gateway stages. Now the UK government has issued new legislation that provides those details, along with guidance to help businesses understand their obligations. The new regulations also confirm the building safety process applicable to ongoing higher-risk building projects.

To pass through gateway two and obtain building control approval, developers behind new higher-risk buildings will need to submit an application to the HSE for approval accompanied by drawings, a competence declaration, a construction control plan, a change control plan, and a mandatory occurrence reporting plan – which reflects the need for design issues, incidents or situations relating to the structural integrity and fire safety of the building which create a risk of a significant number of deaths or injuries, to be recorded and reported, under the regulations. Other documents to be submitted include a building regulations compliance statement, a fire and emergency file, and, where applicable, a partial completion strategy.

The government had originally proposed that a planning statement would also have to be submitted at the gateway two stage, but that requirement has been dropped from the final legislation.

Schedule 1 to the new regulations sets out further details on what information each of the documents should contain. It will be possible for developers to adopt a staged approach to gateway approval.

The regulations also specifically address the change control process, setting out what types of change need to be recorded and notified to HSE and where approval needs to be sought before changes are made. They also stipulate requirements to notify the HSE where, for example, the client changes, or of other events such as insolvency.

The competence declaration reflects new duties that aim to ensure that building work is designed and built in compliance with the functional requirements of the building regulations. These requirements will apply to all new building work on all buildings, not just to higher-risk buildings. The duties for designers have been watered down to a duty to take “reasonable steps”. For everyone else, the duties apply on a strict liability basis.

Building safety expert Katherine Metcalfe of Pinsent Masons said: “The client on every project will need to review and enhance competence checks undertaken prior to appointment of the principal contractor and principal designer. It cannot be assumed that an individual or organisation assessed as competent for the purposes of the Construction (Design, and Management) Regulations 2015 will also be willing and able to fulfil the same duty holder role under the building regulations. The scope of appointments may need to be reviewed if they do not already make provision for this change in law.”

Metcalfe said that the transitional arrangements provided for in the new regulations will significantly reduce the number of projects going through gateways two and three prior to April 2024.  She said this will create “a soft landing for the new building safety regulator while it gets to grips with its new role” and that in turn will hopefully enable the regulator “to support duty holders in making applications which can be processed efficiently”.

She said, however, that industry is concerned about the time it will take the regulator to consider applications. The HSE will have 12 weeks to consider applications for approval at gateway two, and eight weeks at gateway three. The documents to be submitted at gateway three are largely ‘as-built’ versions of the documents to be provided at gateway two, together with some additional declarations.

Further guidance in relation to the new building safety regime is anticipated from government.

Helen Waddell of Pinsent Masons said: “Planning for and managing potential risks, such as delays and associated costs, will be key as these new gateways and transitional arrangements come into effect. It will be important to ensure risk allocation is clear in your contracts and understood by everyone involved and that good records are kept.”

“There is undoubtedly a need for everyone in the supply chain to work together more closely and transparently going forward. Getting organised for 1 October is an absolute must,” she said.

A panel of Pinsent Masons experts will discuss the changes to the building safety regime at a webinar on 13 September - register now.