A look at the new building control regime for higher-risk buildings

Brad Woodroffe (pictured above-left) is senior associate and David Parton is head of construction and engineering at CMS Cameron McKenna Nabarro Olswang LLP

A recent consultation opened by the government (Consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings, published 20 July), together with earlier guidance and draft regulation, clearly indicate that a new regulatory framework is to be introduced for higher-risk buildings (at least 18 metres – seven storeys – which contain at least two residential units or are hospitals or care homes). This will include two new approval stages known as Gateway 2 and Gateway 3, Gateway 1 being the current planning-approval process.

Gateway 2 will be a stop/go point and approval must be obtained from the Building Safety Regulator (BSR) before relevant building work starts. The consultation gives information on the anticipated process for application, review and decision, lists the kinds of information it expects will be required as part of an application and includes a list of activities which, in the government’s opinion, the commencement of work would usually be marked by.

Time limits

The consultation indicates that the BSR will have to make a decision on an application within 12 weeks of the application or such longer period as the applicant agrees to. If the BSR does not approve within the 12-week time limit, absent an agreed extension, the applicant has six weeks to apply directly to the secretary of state under section 30A of the Building Act 1984 (a new provision not yet in force). If this does not happen, the proposal is that the approval application is deemed to have been rejected.

The option to take longer if the applicant agrees seems likely to put an applicant in an unenviable position were the BSR to ask for it. What to do? Refuse to agree, only to see the application then rejected by a BSR concerned that it needed more time to properly discharge its duties? Have hope in an application to the secretary of state where the timings are even less clear? Swallow the delay that arises?

Additional requirements

If the applicant agrees, the decision can be subject to requirements that must be met. As with the period to make a decision, difficulties may arise if the BSR asks for requirements that involve a subjective element such as not to proceed past a specific stage of construction until further BSR approval of a document is given. No time limits for any such further approval by the BSR from receipt of any such documents seem to be envisaged.

“The prospect of a complete building having to sit unoccupied for 12+ weeks pending the BSR’s approval to Gateway 3 will not sit well with many”

The government recognises there may be legitimate scenarios where some information required is unavailable and waiting for it could delay construction. In these scenarios the government is proposing that the BSR will be able to allow a “staged approach” to approval for construction. It also says it is keen that the new hard-stop gateways process does not slow down build plans and it encourages early engagement with the BSR before submitting an application.

During construction, an applicant’s entitlement to proceed with a change will be subject to certain requirements, with substantial requirements for “major changes”. These are not dissimilar to the initial Gateway 2 process, but the BSR has six weeks, not 12 weeks, to decide. The consultation includes a non-exhaustive list of what may constitute a “major change”.

The information trail

There will be duties on clients to maintain, update and submit “golden-thread information” and “key building information”, and it is expected the BSR will carry out inspections both at agreed stages and, possibly, without notice.

Gateway 3 will occur when relevant building work is complete and it will also be a stop/go point. BSR approval must be obtained before occupation of a higher-risk building.

Like for Gateway 2, the consultation lists the kinds of information it expects will be required to be submitted to the BSR as part of an application. It gives similar detail around the review and decision process, and what happens if the BSR does not approve within the 12-week time limit, so it is not hard to see an applicant being put in a similarly unenviable position were the BSR to ask for longer to decide.

Provisions are expected to deal with only part of a building passing Gateway 3 that are similar to those applying to a whole building.

A Gateway 3 application can only be made once completion is achieved and full as-built plans will need to be submitted. It is also noted that completion may include the completion of snagging work (this is something out for consultation). This could have a significant impact on timings given that a further 12+ weeks will be needed for the application to be determined, the certificate obtained and the building registered.

Some had hoped applicants would be allowed to apply for Gateway 3 approvals on an anticipated basis, but it seems that will not be the case. The prospect of a complete building having to sit unoccupied for 12+ weeks pending the BSR’s approval to Gateway 3 will not sit well with many.

The learning curve, as various applicants and the BSR work through these requirements for the first time with, no doubt, no little political and media attention, and in the context of the BSR having strong enforcement tools, is likely to be steep and, for some, hard.

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