Eric Johnstone is a legal director at law firm Brodies LLP
On 1 October 2023, the Building Safety Act 2022 (BSA) brought in a new building-control regime for higher-risk buildings (HRBs). Under the new regime, the Building Safety Regulator (BSR) is responsible for building-control approval for works to new and existing HRBs.
“An application can be made for partial completion, assuming that the BSR has been informed in advance”
However, a recent survey has indicated that around 50 per cent of construction industry professionals are “not that clear” or “not clear at all” on the responsibilities of dutyholders for the gateway system. This has been underlined by indications from the BSR that a majority of applications made to date are invalid. This article is intended to help provide some clarity on those issues.
Overview
There are three gateways that form the new building-control approval process:
- Gateway one: Planning permission – need to show fire safety is incorporated into the proposals (been in force since August 2021).
- Gateway two: Preconstruction – the BSR needs to be satisfied that the design meets building regulations before construction commences.
- Gateway three: Completion – the BSR needs to be satisfied that the design and construction meets Building Regulations before the building can be occupied.
The BSA also introduced five categories of dutyholder into the Building Regulations 2010. Each of these dutyholders has various responsibilities in relation to a project:
- Client
- Principal designer
- Principal contractor
- Designer
- Contractor
It is possible for the same person to be a dutyholder under the Construction (Design and Management) Regulations 2015 and the 2010 Building Regulations, but this is not necessarily the case.
Gateway one
As gateway one has been in force for more than two-and-a-half years, this article focuses on the two gateways brought in by the BSA. However, at gateway one, a developer must submit a fire statement setting out fire safety considerations specific to the development when making its application for planning permission. The principal designer will also be responsible for the golden thread of information at this stage.
Gateway two
Responsibility for submitting a gateway two application to the BSR sits with the client, but it can (and it is expected it will) delegate this and have someone submit the application on its behalf. This is likely to be the principal contractor. However, even if it is submitted on its behalf, the client is still required to sign the application.
In addition to current information requirements for building control, applicants will need to submit “prescribed documents” in relation to an HRB. To make matters run smoothly, parties should try to identify at the outset who will be responsible for producing each of the documents and that should form part of their contracted services. Where people do not have direct responsibility for producing the documents, a provision should be included requiring them to give all reasonable assistance required to produce and collate the documents.
The prescribed documents include:
- A competency declaration – broadly, this is made by the client to state that the principal contractor and principal designer meet the requirements to act in these roles for the project in question.
- A Building Regulation compliance statement – this must show the approach taken in relation to each element of the building and the work to ensure compliance with all applicable requirements of the building regulations. It must also explain why an approach was adopted, why it is appropriate and how it ensures compliance with all applicable requirements of the building regulations.
- A fire and emergency file
- A construction plan
- A change control plan
- A mandatory occurrence reporting plan
Schedule one of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 sets out the requirements for each of these documents. However, the BSR has said that it will not produce templates, or set out in detail what needs to be in each document as the requirements for each building will be different. In summary, though, the requirements are that the design for an HRB is fully developed before the application is considered.
A staged gateway two application is possible but requires the same documents as a standard application as well as a staged work statement and a partial completion strategy. A gateway two application will be needed for each stage of the proposed HRB works.
When applications are received, there is a validation process in place, so the BSR will review the application to see if there is any information missing. However, it will not consider specific details before an application is made – it is merely to check the procedural requirements have been met.
The BSR then has 12 weeks to make a decision on an application, although this can be extended if the BSR requests and the applicant agrees. The BSR can reject an application if the application or any document accompanying it:
- Does not comply with regulation 4 (for new HRBs) or regulation 12 (existing HRBs) of the 2023 regulations.
- Is not sufficiently detailed to allow the BSR to make a determination on whether the work will contravene any applicable building regulations.
- Contravenes any applicable building regulations.
- Shows that the strategies, policies and procedures in relation to the work would contravene the 2023 regulations in respect of change control, the golden thread or the mandatory occurrence reporting, or would contravene the dutyholder and competence provisions in Part 2A of the 2010 regulations.
Changes
Changes have always been part of working on construction projects. However, the updated building-control regime means that these are now much more closely regulated:
- Regulation 18 of the 2023 regulations confirms that a record of all controlled changes must be kept. This includes changes to any current plans of work, strategies, policies or procedures set out in agreed documents.
- Regulation 20 of the 2023 regulations confirms that “notifiable changes” must be notified to the BSR by the client (or on its behalf) before the works can be carried out.
- Regulation 21 of the 2023 regulations confirms that for “major changes” a change control application must be made and approved before the works can be undertaken. The BBS then has six weeks to make its decision.
What falls within each of these categories of change is set out in the 2023 regulations, although (as you might expect) major changes cover the most significant changes to the works being undertaken.
Gateway three
Gateway three approval is dealt with under Part 5 of the 2023 regulations. Again, the application is to be made by the client, but can be made on its behalf if it signs the application. Gateway three approval is a prerequisite to registering the building with the BSR and legal occupation.
This application must include a notice stating the date on which the building work was completed, and therefore comes at the end of the project. There is, therefore, an argument that the practical completion certificate needs to be included in the application. However, this would conflict with the interests of clients who would want gateway three approval before granting practical completion.
The BSR has, however, provided some further clarity confirming that what is needed for the application is that all notifiable building work is complete rather than the entirety of the works. This means that the notice requirements of the application could be satisfied by a separate document stating that the notifiable building works are complete, with formal completion under contract following gateway three approval.
As part of the application, the prescribed documents in relation to gateway two are updated to show the as-built position, together with the golden thread information and a compliance declaration. This declaration needs to be signed by the principal contractor and principal designer confirming they have fulfilled their dutyholder and competence duties.
The BSR then has eight weeks to consider and approve an application, although this can be extended at the BSR’s request.
An application can be made for partial completion, assuming that the BSR has been informed in advance of this approach (usually as part of the gateway two application) and provided with a partial completion strategy. The BSR has noted that the intention is that partial completion will only be allowed for larger sections of HRBs and not, for example, individual flats. There is no reduction in the time period for the BSR to consider a gateway three partial completion application – it stays as eight weeks.
Conclusion
The new regime has introduced significant change to the building-control process. The design of an HRB project is now significantly front-loaded, and all major elements of the design will need to be established before works start. Any changes will also be strictly policed. The new process will take some getting used to, but it looks like it is here to stay.
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