New building safety rules for works to higher-risk buildings

Since the Building Safety Act came into force last year, housing landlords have been waiting to find out if maintenance and refurbishment works to high-rise buildings would be covered by the new three-stage building control regime (otherwise known as the Gateways). The recent publication of the Building (Higher Risk Buildings Procedures) (England) Regulations 2023 (the Procedures) now provides that clarity.  

As anticipated, the Procedures cover construction of new Higher Risk Buildings (meaning buildings measuring 18 metres or seven storeys or higher from ground level); works to existing buildings that causes them to become Higher Risk Buildings (eg adding additional storeys, or converting offices into apartments).

The Procedures now clarify that most works to existing Higher-Risk Buildings subject to the 2010 Building Regulations will also be in-scope, and will have to seek approval from the Building Safety Regulator for the works at each of the three Gateway stages. The new rules came into force on 1st October 2023, covering most new in-scope works to Higher-Risk Buildings commenced after that date.

Exempted works

Helpfully, the Procedures set out three categories of works to Higher-Risk Building that are partially or fully exempted from the Gateway regime: 

• Emergency repairs  – These are emergency repairs to a Higher-Risk Building, required to be carried out as a matter of urgency due to the risk of health, safety or welfare of persons in or about the building and where it is not practicable to comply with the building control requirements before the works commence. Landlords undertaking emergency works must notify the Building Safety Regulator as soon as possible after the works are commenced, and must apply to the Regulator for retrospective approval (called a "regularisation certificate") as soon as the works are completed. 

• Scheme works – These are works to existing Higher-Risk buildings that are self-certified under Regulations 20 and 20A of the 2010 Building Regulations and are fully excluded from the Gateways regime.
• Exempt works – A defined list of minor repair and replacement works to existing Higher-Risk Buildings that don't affect the structure or fabric of the building, which are also excluded from the Gateways regime. 

Gateway regime for in-scope works to Higher-Risk Buildings

For all works to existing Higher-Risk Buildings that are not exempt, landlords must follow the Gateway regime under the Procedures. Failure to meet the requirements will be an offence under the Building Act 1984. 

• Gateway 1 has been in force since August 2021, and requires landlords undertaking works to a Higher-Risk Building to include a fire safety statement as part of the local authority planning application process. 
• Gateway 2, now called "building control approval applications", must be submitted to and approved by the Regulator before the works commence. The Regulator must determine applications within eight weeks of their submission, and any approvals can be made subject to requirements (eg to revise and resubmit plans for approval). 
• During the works period, landlords must notify any "notifiable changes" to the Regulator, and apply to the Regulator for approval for "major changes" before those works can take place. The Regulator must determine change control applications within eight weeks, and can make approvals subject to specific requirements. Landlords must also ensure that their principal (or sole) contractor maintains a mandatory occurrence reporting system to allow reporting of safety concerns.
• Gateway 3, now called "completion certificate applications", run in a similar way to Gateway 2, with the additional requirement for the principal contractor and principal designer.   to provide compliance statements in respect of the works. The Regulator must determine any applications within eight weeks, which includes inspection of the works as required.
• A "Golden Thread" of key building information for each Higher-Risk Building (comprising all Gateway and change control applications, mandatory occurrence reports and correspondence with the Regulator) must be stored in an electronic facility and provided to the Accountable Person prior to submission of a Gateway 3 application.

Given the last-minute publication of the Requirements, housing landlords have a lot to catch up on. 

Before commencing new maintenance programmes, landlords should review their specifications to identify which jobs will be exempt from the Gateway requirements. For in-scope works, landlords and their contractors will need to allow sufficient time to allow Gateway 2 and 3 and change control applications to be approved, and decide who bears the time and cost of any delays in approval. Landlords will also need to coordinate the digital storage of Golden Thread information, and ensure sufficient support from their contractors and consultants to allow the smooth running of the Gateways process.  Term contracts and consultant appointments should be amended to reflect these changes.

For existing programmes involving in-scope works to Higher Risk Buildings, landlords and contractors will need to revisit their contracts and specifications and agree how any Gateway applications will be dealt with. 

The Government Guidance on Collaborative Procurement to support Building Safety provides an useful toolkit for landlords to embed the Gateways regime into new and existing works programmes, including guidance on the procurement and selection process and recommended forms of  contract to enable early contractor engagement and collaborative working. The guidance recommends a fair risk share for delays caused by the building control approval process and emphasises the need for transparent decision-making and clarity of contractual roles.