The new building control gateway approval regime applies to Higher Risk Buildings (“HRBs”) as defined in The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (the Description Regulations).
The gateway regime requirements and procedures are set out in the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (the HRB Regs) (The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023). The Health and Safety Executive (HSE) has also published useful guidance (Building Control: An overview of the new regime).
There are three new gateways to pass through to construct and occupy HRBs and the new Building Safety Regulator (the BSR) which is part of the Health and Safety Executive (HSE) is the building control authority for all new HRBs unless the transitional arrangements apply (as to which see Gateway 2 below).
Apart from the definition of an HRB there are two further points to consider:
- First, there are slight differences between what that means for the “design and construction “stage and what it means for the “in occupation” stage. This article focuses on the former.
- Second, the definition of “building” is set out in Regulation 4 of the Description Regulations.
The Description Regulations deal among other things with buildings that share an underground basement or car park in Regulation 4; specific exclusions in Regulation 7 (for example secure residential institutions such as prisons, hotels and, military barracks,); how the height of the building is determined in Regulation 5 and the meaning of “storeys” in Regulation 6.
Gateway 1
This is the planning gateway and it has been in place since 1 August 2021 (see The Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021). There is an increased emphasis on fire safety whereby a fire statement has to be included in a planning application and the BSR is now a statutory consultee and will review that statement.
Gateway 2
Unless the transitional arrangements apply (see our article on these here) Gateway 2 and 3 provisions have to be complied with from 1 October 2023.
Gateway 2 applies for either:
- HRB work or a stage of HRB work (HRB Regs 3 – 9); or
- work to an existing HRB (HRB Regs 10 – 17).
“HRB work” is defined in the HRB Regs (HRB Regulation 2(1)) to mean:
- The construction of an HRB
- Work to an existing building that cause it to become an HRB together with any work to the building carried out at the same time as that work
- Such work, if any, which is necessary to ensure a building that undergoes a material change of use to become a HRB complies with the applicable requirements listed in regulation 6 of the Building Regulations 2010 (requirement relating to material change of use) together with any work to the building carried out at the same time as that work
If you are doing HRB work, work to an existing HRB or to change a building’s use to an HRB, an application to the BSR needs to be made for building control approval before any work can start. That is very important. Work on site without gateway 2 approval will be subject to compliance and/ or stop notices (the latter meaning that work has to stop until the Gateway 2 application has been properly made and approved) as well as attracting fines and penalties.
The BSR has 12 weeks to assess the application for HRB work or 8 weeks for work to an existing HRB or, in both cases, such longer period as agreed between the BSR and applicant.
The application must contain sufficient information to show how the building, when built, will:
- Satisfy all applicable functional requirements; and
- Demonstrate how it is intended to manage construction activity so that what is built is as described in the application.
Applications can be made in stages (HRB Regs 3 – 4), but the HSE Guidance suggests that the BSR will only consider this to be applicable where it is not viable for an application to provide detailed plans for the entire HRB and it will not be appropriate for packages of work for a building. The new procedures and information required by the BSR for a staged application, are set out in more detail in HRB Regs 4(3). A staged application must include full descriptions of all of the proposed stages and a timetable for each stage (Reg 4(3)(c)(i)); full details of the first stage and sufficient information for subsequent stages to show the BSR how the functional requirements of the building regulations will be met (Reg 4(3)(b)).
Gateway 2 Applications
An application for Gateway 2 approval can be made online only. The BSR has made it clear that the better and more detailed the application and documents filed the more quickly and cheaply it will be approved. An applicant will be given a single application reference number to be quoted on all communications for use as the portal entry point and the project or development or each building concerned should be named by the applicant. The BSR application system can only cope with 4 gigabytes per document, so documents which exceed this limit will have to be split but there is no limit on the number of documents that can be uploaded. BSR has indicated that initially, at least, it will not reject an application if a document is filed in the wrong section but it may take them longer to review and therefore their fees (calculated on a time charge basis) may be higher.
BSR has been keen to emphasise that once an application is made, early dialogue is encouraged to maximise the chances of a positive application. However, they have also said that the old pre-application building control advice will not be available, nor will they offer advice on the interpretation of the regulations.
The application requirements are set out in detail in Regulations 4 and 12 and Schedule 1 of the HRB Regs and apart from a description of the proposed work and plans (at least 1:1250 scale) showing size, position of building and relationship to adjoining boundaries, must include the documents referred to below:
- A competence declaration from the client/employer
- This is to confirm that the client is satisfied that the principal designer, principal contractor and any other person appointed to carry out work are competent and provide a written record of the steps they have taken to be satisfied of their competence.
- The construction control plan
- This is to describe how building work will be managed to maintain compliance with the building regulations throughout design and construction.
- The change control plan
- Showing a clear change control process; and is a tool for keeping an accurate record of all changes and for showing how the impact of changes have been fully considered and recorded.
- A building regulations compliance statement
- Setting out the approach taken in designing the HRB to ensure compliance with the building regulations and an explanation of why such an approach is appropriate. This is described in the HSE Guidance as “a summary that signposts the regulator to relevant documents in your application to each of the functional requirements“.
- A fire and emergency file
- To ensure that strategies for managing building safety risks, once the building is occupied, have been considered from early design stages and should include the measures, strategies and policies that the owner of the completed HRB should adopt to ensure safe evacuation in an emergency.
- Amandatory occurrence reporting plan statement
- Describing the mandatory occurrence reporting system to log safety occurrences (mainly relating to fire and structural safety).
- A partial completion strategy
- If applicable and it is planned at the outset that completing and occupying the works in separate parts, see below for more information on that.
- Aclient statement
- If the application is made by someone other than the client/employer.
Overall, the application must comply with all the requirements set out in the procedural regulations to be approved and Gateway 2 approval must be obtained before works can start on site. The BSR can grant approval subject to requirements, e.g. work doesn’t start/proceed beyond a particular point until a specific plan or revision is submitted.
Starting work
Once gateway 2 approval has been given and before starting on site the BSR must be notified of the intention to start work at least 5 days before doing so. The guidance suggests that “starting” means undertaking of any element of permanent building work as described in the building control approval application. Or put another way site set up, demolition, stripping out works or excavation of trial holes or installing test piles will not be considered as starting HRB works.
In addition, the BSR must be notified within five days of the work reaching the point at which it is regarded as “commenced”. “Commenced” is different from “starting”. The former is defined (in section 46A of the 2010 Building Regulations). The latter is not.
Regulations 9 and 17 define when the works will be regarded as “commenced”. In very simple terms, work will be regarded as “commenced” when foundations, any basement level (if there is one) and the structure of ground floor level is completed. The position is slightly different for a complex building, e.g. a building which has more than one storey below ground level or a building which is constructed on the same foundation plinth or podium as another building or structure.
Controlled Changes (HRB Regs 18 – 26)
The BSA has introduced a rigorous regime for changes to the approved documents called “controlled changes”.
Controlled changes are a change to any approved plans or departure from strategies, policies or procedures in any approved document, all of which must be recorded in the change control log.
Importantly, change control applications must include an explanation of the reason why the change has been proposed; a list of the people whose advice was sought (this should obviously be from those competent to give that advice and ideally in the form of a report from them); a compliance explanation; an assessment of the agreed documents affected by the proposed change and a statement by the client/employer confirming agreement to the application being made and confirming that the information contained in the application is correct.
For the purposes of the HRB Regs changes are either “major” or “notifiable”. It is for the client/employer/principal designer/principal contractor to decide if a change is major or notifiable. The proposed changes cannot proceed until the correct process set out in the HRB Regs has been followed. The BSR has the power to specify whether a change is major or notifiable (HRB reg 25) so can override a decision made by those engaged in the development if it considers that the decision is incorrect.
“Major” changes are those which would undermine the basis by which building control approval was granted and require separate applications to the BSR for approval, which approval may take up to up to 6 weeks. “Notifiable” changes are those which potentially have an impact on compliance with the regulations. The BSR must be notified of notifiable changes, after which the proposed changed work can proceed, albeit at risk of the BSR considering that the change is a major one for which an approval application should be made. The BSR may request further information on a proposed change and if it does so, that information must be provided within 10 working days.
Gateway 3 Applications (HRB Regulations 40 – 45)
Once the HRB works are reaching completion an application must be made to the BSR for a completion certificate. This is needed before the HRB parts of the building can be occupied. To occupy without a completion certificate is an offence under s76 Building Safety Act, which may be punishable by a prison sentence.
The offence under s.76 only applies to occupation of “relevant residential units”. This does not include any residential unit that existed before the work began or where there are works to a building that cause it to become an HRB. For example, if adding 2 extra floors to a 5 storey building thus bringing it within scope as an HRB, it will not, in principle, be an offence for the existing 5 storeys of the building to be occupied before completion of construction of the 2 additional storeys. Similarly, non-residential units in a mixed use development will not in principle fall within these regulations. The BSR will, however, want to be satisfied in both cases that throughout the works there is a plan in place to protect any existing residents from a health and safety perspective.
It remains to be seen how the industry deals with the inevitable pause from practical completion of the works under the relevant building contract and the gateway 3 completion certificate application process. This includes the question of who takes the risk of the completion certificate being delayed or not granted. The BSR has been keen to stress that they do not see the application for a completion certificate as a cliff-edge. Rather they see it as a gradual process using information built up over the building control inspections throughout the build and they have suggested that information can be submitted before the commencement of the 8 week period for making decisions.
The process and detail for a completion certificate application is set out in regulations HRB Regs 40 to 45. The essence of Gateway 3 is to show how the building works have conformed to the approved design and satisfies all applicable functional requirements.
Documents accompanying such applications must include the various items as set out in the non-exhaustive list below:
- As built plans and information.
- Final versions of all agreed documents that accompanied the initial (gateway 2) application.
- Any controlled changes and the change control log.
- Building Regulations Compliance statement. signed by each principal contractor and each principal designer confirming that they have fulfilled their duties under the regulations. This may cause issues for dutyholders, if there are any disputes between them and or the client/employer, because the client /employer needs these declarations to submit its application.
- A statement signed by both the client/employer and the relevant person (i.e. the accountable person) that the relevant person has received the golden thread and other relevant handover information.
The Regulator must inspect the work and it has 8 weeks (not 12 weeks as suggested in the Government’s consultation – it is clear they have listened to industry) from the date of receipt of the valid gateway 3 application to determine the application or such longer period as agreed between the BSR and applicant.
The BSR may agree an extension with the applicant to provide time for them to correct errors and/or provide additional information, rather than reject an application straight away.
There is no definition of what constitutes “completion”; it is just necessary to be able to satisfy the requirements of any completion application. The question arises as to what happens where practical completion has been certified under the building contract with a list of outstanding snagging? Is the industry going to have to move away from such practice and towards zero defects on completion and if so what will that do to occupation timing? The BSR has indicated that further guidance is likely to be issued about snagging but there is no indication as to how quickly that will be made available.
Partial Completion
The BSR will allow partial completion of a building (HRB Regulation 45). This means, for example, that there could be partial completion of a part of a building whether for residential or for other use if a mixed use development.
A partial completion strategy should be included in a Gateway 2 submission. (HRB Regs 4 (2)(b)(viii) or 12(2)(c)(vii)) BSR have made it clear that partial completion cannot be at the expense of early occupier safety and cannot pose any greater risks than completion of the whole. The HSE guidance suggests that it will not be appropriate for individual flats or floors of flats; and all non-residential elements and infrastructure must be completed for the purposes of building regulation compliance.
Appeals
There are various options open to a developer who receives a rejection or a decision with which it disagrees on gateways 2 or 3 or a change control application. There are at least 4 options:
- Start again and re-apply addressing the reason for rejection in the first place; or
- Apply to the BSR to review the decision (Reg 48 HRB Regs / s25 BSA). This has to be done within 21 days beginning with the day after the date of the decision. The BSR then has 13 weeks to decide.
- If the outcome of the review is unfavourable an appeal can be made to what is known as the First Tier Tribunal (FTT). An appellant must have gone through the review of the decision first as set out in 2 above. The Application to the FTT must be made within 21 days beginning with the day after the date of the review decision.
- Appeal under Section 30A Building Act 1984. This is an appeal to the Secretary of State if the BSR does not determine an application within the relevant time limit. Appeals can then be made to the FTT (HRB Reg 56) – see 3 above.
Fees/Charges
The Building Safety (Regulator’s Charges) Regulations 2023 (Charging scheme – Building safety – HSE) came into force on 1October too. This gives the BSR the right to recover charges in connection with an application. This will be a mixture of set charges for application submissions and hourly rates for consideration of each submission and inspections.
Conclusion
The Gateway regime is a significant new approach to building control for Higher Risk Buildings, which needs to be carefully implemented in accordance with the statutory regulations. If not, delays and additional costs will be incurred by developers, as well as possible criminal sanctions.