How developers can prepare now for the Building Safety Act: Part 3 of 3

Welcome to the third and final part in our series of articles on the Building Safety Act 2022.

In Part 1 of our series of articles on the Building Safety Act 2022 we discussed the greater exposure to claims due to extensions in limitation periods and the measures aimed at addressing failures to remedy historical safety defects. In Part 2, we discussed the dutyholder regime and, in this final part, we look at the new gateway regime for higher risk buildings.

New gateway regime: big changes for development of higher risk buildings

Applies to higher risk buildings

What’s changing? Part 3 of the Act provides for a new ‘gateway’ regime to ensure building safety risks are considered at each stage of the design and construction of higher-risk buildings. However, the secondary legislation containing the practical details of Gateway 2 (before construction begins) and Gateway 3 (the current completion/final certificate phase) have only been published in draft and have been removed from the government website. Therefore, updated regulations may be published shortly.

Gateway 1 (before planning permission is granted) is already in force. Gateway 2 and 3 are expected to come into force between April 2023 and October 2023. If a building falls within the definition of a higher-risk building the Building Safety Regulator (BSR), part of the Health and Safety Executive, will become the building control authority.

Action points

• Assess whether any current or future projects fall within the definition of ‘higher-risk buildings’: A higher-risk building during the design and construction phase (and therefore subject to the new gateway regime) is a building at least 18 metres in height or has at least seven storeys and either:
  • has at least 2 residential units; or
  • is a care home or a hospital.
• The government is currently consulting on which buildings are included and excluded in the new regime and on the definitions of these buildings.
• Building work will not be able to commence until Gateway 2 approval has been obtained from the BSR. Therefore, consideration needs to be given to the procurement process as the design will need to be sufficiently advanced from a Building Regulations perspective for Gateway 2, which may also bring a new perspective for design and build projects. 
• A building cannot be occupied until the BSR has issued a completion certificate at Gateway 3 and the building is registered. The BSR has a potential approval period of 12 weeks in which to approve applications for completion which will need to be accommodated in programme. Again, this needs to be considered in the context of project timelines for completion and occupation of buildings, including in any interfaces with upstream development agreements.
• Compliance with the new regulatory regime may cause project delays and contracts need to clearly allocate the potential time and cost consequences of these delays. In a bulletin from the Health and Safety Executive on 28 May 2022, it was reported that the HSE’s Planning Gateway One service has raised concerns on over half of all planning applications it was required to be consulted on. When Gateway 2 and 3 are implemented developers should be prepared for delays both in terms of concerns being raised by the BSR and possibly delays in the BSR dealing with the volume of applications. Delays may also occur during construction as a result of:
  • the powers of the BSR to carry out inspections and open up work for testing;
  • changes in design requiring further approval of the BSR;
  • the BSR issuing compliance and stop notices; and/or
  • Mandatory Occurrence Reporting to the BSR which will involve the obligatory reporting of structural and fire safety occurrences which could cause significant risk to life safety.
• Consider how the golden thread will be kept digitally and start consulting with the supply chain on best practice. Regulation 21 of the draft Regulations provided that the client must create and maintain an electronic facility for the purpose of holding the golden thread information. Whilst the precise requirements of the golden thread are awaited, it is intended that this will include the information and documents required as part of the new regulatory regime and to demonstrate compliance with building regulations. The golden thread will be created before building work starts and is updated throughout the design and construction process.
• Therefore appointments and building contracts will need to address how this information will be stored, accessed, updated and verified as accurate as well as dealing with the ownership of documents. Participants in a project will also need to consider how information will be shared across different software and platforms.

Final thoughts

Despite the significant time and cost of complying with the provisions failure to prepare early may lead to project delays and increased costs. Therefore, a proactive approach is advisable as new regulation and guidance is published over the next few months.

Click here to read part 1 in the series.
Click here to read part 2 in the series.