One of the key objectives for the BSA to achieve based on the outcomes from the Hackitt report, has been increased regulation and control of high-rise buildings, to assure the quality and safety standards of such buildings moving forwards, in the overarching goal to ‘build a safer future’.
Since the 1 October 2023, the new regime of ‘Gateways’ introduced within Part 3 of the BSA has been fully implemented, meaning that the Building Safety Regulator (established previously by the BSA), will approve and sign-off all high-rise buildings moving forwards, from planning stage through to completion. High-rise buildings are defined as those 18m and above, as discussed below.
An overview of these Gateways can be seen below:
Gateway 1: Planning Stage
The first gateway occurs at the planning stage of the higher-risk building. At this point, the Developer will need to submit a document to the Building Safety Regulator for approval, which outlines the fire and structural considerations of the Development. The Building Safety Regulator will need to be assured that fire safety measures have been considered in the planning of the Development from the beginning.
This gateway was brought into force by secondary legislation on 1 August 2021 by the Town and Country Planning (Development Management Procedure and Section 62A Applications)(England)(Amendment) Order 2021.
The Order defines the applicable buildings to which this applies, as those over 18 metres in height or more than 7 storeys, and which contains two or more dwellings or is used for educational accommodation. It also applies to existing buildings over 18 metres that are being redeveloped or refurbished.
Article 4 of this Order inserts a new article 9A within the Town and Country Planning (Development Management Procedure) (England) Order 2015, requiring a fire safety statement to be submitted at the planning stage for high-rise buildings as defined within the Order.
The requisite form must be submitted to the Building Safety Regulator alongside the planning application, who will then take act as a statutory consultee in the decision as to whether the proposed development may be approved.
Forms to be submitted to comply with gateway one, can be found here.
Gateway 2: Before construction starts
The Developer will then enter the second gateway prior to construction starting on-site. This gateway involves a holding point in order to allow the Building Safety Regulator to review plans against the Building Regulations, thus further regulating the safety of the construction.
This stage differs to gateway one as this is when the building control approval application is submitted and as well as the fire safety information referred to within gateway one, must also include information on competencies and the mandatory reporting as implemented within The Building Regulations etc. (Amendment) (Regulations) 2023 which came into force from 1 October 2023.
During the construction process, the Building Safety Regulator has discretion to examine the Development and the information relating to the same, to satisfy itself that the ‘golden thread’ of information is being met. Should there be significant changes to plans during the period of construction, the Building Safety Regulator would need to be informed and give their approval to these changes.
Gateway 3: Upon completion, prior to occupation
Then final gateway, brought into force most recently on 1 October 2023, arises upon completion of the high-rise building, but prior to any residents occupying the building. At this last stage, the Building Safety Regulator, will perform the role of Building Control and if satisfied with the construction and documents held, will issue a completion certificate to essentially provide the final validation that the construction of the building complies with current building regulations. The building may then be registered with the Building Safety Regulator, which will identify the Principal Accountable Person who will have ultimate responsibility for fire and structural safety at the Development. Once certification has been issued, only then may the building be occupied.
We expect that this stage may form the subject of discussion further down the line, as to whether this stage absolves the contractor’s/developer’s of liability, and whether and to what extent, liability will rest with the Building Safety Regulator. Further challenges are discussed below.
A number of challenges arise from this new approach, specifically with the onus being on the Building Safety Regulator to review all documents and information, for each high-rise building, and at each checkpoint. It is prudent to question what the impact on this extensive (and necessary) review will have on constructions programmes and whether delays will be experienced and ultimately how will end up paying for these delays. Should the Building Safety Regulator not be appropriately staffed there could be lengthy holding periods having a knock-on effect on cost and disruption. Further delays could also be experienced with residents only purchasing once the third gateway has been met.
The availability of insurance should also be considered, as well as any amendments to PI policies and specifically notification clauses. It is expected that there may be some disputes between developer’s and the Building Safety Regulator should they not agree on methods that are stated to comply with the functional requirements.
On the other hand, should the Building Safety Regulator certify buildings that are later found to not comply with the Building Regulations, how much liability will they carry, as it will not be expected that their certification will absolve relevant parties from their duties and obligations.
It will be interesting to see the application of the gateways in the coming months.