A key part of the regulatory framework for higher-risk buildings introduced under the Building Safety Act 2022 is the scrutiny by the new Building Safety Regulator prior to commencement of construction and completion through the new Gateway regime.

The new Building Safety Regulator (Regulator) will be responsible for building control of higher-risk buildings. This will be achieved through the proposed three-stage Gateway approval system which is intended to ensure that consideration is given to building safety risks at each stage of the design, construction, completion and occupation of a higher-risk building. This will provide assurance to the Regulator that the higher-risk building complies with the Building Regulations and also help to support the requirements in the Act to produce and update a golden thread of information.

As noted higher-risk buildings during construction are buildings in England of at least 18 metres (7 storeys) which contain at least two residential units or are hospitals or care homes. Residential units are dwellings or any other unit of temporary accommodation.

What are the Gateways?

There are three stages to the new Gateway regime:

• Gateway 1 - the planning stage. Applicants will need to demonstrate that fire safety matters have been taken into account.
• Gateway 2 –There will be a hard stop on construction which cannot begin unless the Regulator has approved the application.
• Gateway 3 – at completion of construction. There will be a hard-stop on occupation to allow the Regulator to carry out final inspections and issue a Completion Certificate.

How will Gateways work?

Gateway 1 

Gateway 1 came into force on 1 August 2021 through the introduction of the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021.  This requires fire safety matters to be incorporated into the planning stage for higher-risk buildings. The HSE will be a statutory consultee and submission of Fire Statements will be required when seeking planning approval.

The detail around the operation of Gateway 2 and Gateway 3 is found in the draft Building (Higher Risk Buildings (England) Regulations [2022]. These Regulations also set out the proposed time limits for the Regulator to perform its statutory responsibilities in relation to work involving the construction of a higher-risk building, work to an existing building that causes it to become a higher-risk building or work to a building that becomes a higher-risk building through material change.

Gateway 2

Before construction can commence, clients (with the help of the duty holders) must submit a building control approval application to the Regulator.

Detailed information needs to be provided at this stage which includes written declarations concerning the competency of the principal contractor and the principal designer, a description of the work and detailed plans, a construction control plan describing how building safety will be maintained during construction, the design and build approach, the fire and emergency file, the arrangements for the capture and maintenance of the golden thread information and a planning statement from Gateway 1. Details of any proposed partial completion strategy will also need to be included if partial occupation of the building prior to completion is proposed.

The Regulator has a proposed 12- week period to approve or reject these building control applications, or to approve subject to fulfilment of certain requirements. Reasons for rejection of the application must be provided.

Changes during construction

Changes to approved building work for higher-risk buildings will be monitored by the Regulator through a system of change control applications.

Major changes, which are currently undefined, will require approval from the Regulator before the change can be implemented. The Regulator should approve or reject such changes within a proposed four weeks.

A Notifiable Change (again, as yet undefined) would also need to be referred to the Regulator prior to being carried out, although it is anticipated that the works will be able to proceed unless there is objection within a proposed 14-day time frame.

Records of the controlled change including a compliance explanation of how the change meets building regulations will need to be maintained. The categorisation of major and notifiable changes will be subject to consultation now that the Building Safety Act is in place.

Gateway 3

Gateway 3 is intended to provide assurance that the building is safe for occupation and requires the issue of a Completion Certificate from the Regulator. Clients with help from the duty holders will be required to submit a Completion Certificate application and provide updated plans showing the size and position of the as-built higher-risk building, and key building information, a list of all mandatory occurrence reporting, together with signed declarations from the principal contractor and the principal designer that the works and building comply with the Building Regulations. Confirmation that the "golden thread information" and key building information has been handed over to the accountable person for the occupation phase will also be required.

There is a proposed 12-week period for the regulator to approve the application for a Completion Certificate. Higher-risk buildings cannot be occupied unless a Completion Certificate and the building registered with the Regulator. 

The Golden Thread

The information and documents required through the Gateways will form part of the Golden Thread information. Essentially the Golden Thread information will be the information about a building that enables a building to be kept safe. The information needs to be accurate, easily understandable, up to date and readily accessible. Part 5 of the draft Building (Higher-Risk Buildings) (England) Regulations [2022] sets out the detail surrounding the Golden Thread information and confirms that it will be the responsibility of the client working with the duty holders under the Building Safety Act to put in place the correct systems, processes and procedures to ensure that the Golden Thread is updated and maintained. The Golden Thread will be held digitally and should be established at the start of the construction cycle.

Comments

It remains to be seen what changes will be made to the Gateway system and proposed time limits for Regulator approval as the draft regulations are developed during consultation now that the Building Safety Act has received Royal Assent.

The introduction of stop/go points at Gateway 2 and Gateway 3 is likely to have an impact on the procurement process and parties will need to understand the risks of Regulator delay. Delay to the issue of the Completion Certificate will be of importance to employers, funders, contractors and tenants alike since occupation of the completed building will not be allowed unless a Completion Certificate is issued. Contractual amendments may also be required to account for the new responsibilities of duty holders regarding responsibility for updating and inputting information, and recording changes, to the Golden Thread information.