We survey the new building control regime for Higher-Risk Buildings, and how to manage delays in the approval process.
It's been a year since the Building Safety Regulator became the building control authority for all Higher-Risk Buildings in England, overseeing the new building control approval ("Gateways") regime for the construction and refurbishment of those buildings.
A regulatory change of this magnitude was never going to be easy, and recent statistics are concerning. Between 1 October 2023 and 16 September 2024, the Regulator received 1,018 building control approval (i.e. Gateway 2) applications for Higher-Risk Buildings work, only 146 of which have been approved.
The complexity of the new regime has led to many clients putting Gateways work into the "too hard" basket. These delays can't last forever, especially with the backlog of urgent remedial work to existing HRBs - most of which will need Gateways approval.
In February 2025, Andrew Moore, Head of Building Control at the Building Safety Regulator, confirmed to Housing Today that Gateway 2 applications since October were taking an average of 22 weeks to determine. (The statutory deadlines are 12 weeks for new build applications and 8 weeks for works to existing HRBs). Housing Today also reported that a Freedom of Information Act request made by consultancy Project 4 revealed that 92 new build projects and 641 works projects to HRBs are on hold pending Gateway 2 approval.
In the meantime, how do clients and professional teams deal with delays to Gateway approvals?
It's crucial to ensure applications are complete and correct. According to the Regulator, around 20% of Gateway 2 applications are rejected for being invalid. A key failing is applicants' inability to demonstrate that the design complies with the legislative requirements. The Regulator advises that this should be a coherent narrative, rather than a simple compliance statement and an accompanying document dump.
Clients and professional teams should also be scheduling Gateways work programmes to anticipate delays in the approval process. Most standard forms of construction contract allow contractors an extension of time for delays in statutory approval, but clients should also consider similar provisions for sub-contractors and designers. Clients and professional teams should have frank discussions about the cost implications of potential delays, especially around labour and materials costs.
Where long delays prompt parties to exit Gateways projects before completion, clients should obtain robust warranties for work undertaken to date and ensure that replacement contractors and designers are fully briefed to prevent any gaps in compliance.
For urgent works to existing HRBs that can't wait for building control approval, clients can consider the partial exemption for "emergency repairs" to HRBs, which are "necessary to be carried out as a matter of urgency due to the risk to health, safety or welfare of persons in or about the building." This exemption allows works to commence without securing Gateway 2 approval, though clients must submit a "regularisation certificate" to the Regulator when the works are completed. Clients must still ensure that their professional teams are competent and maintain the Golden Thread Information for the project. The Regulator has emphasised that this exemption should only be used for genuine emergencies and can't be used to circumvent the building control process.
Ultimately, the building industry must get to grips with the Gateways regime, even in its current state. Failure to engage with the regulatory process will create further delays to works that are urgently required to create the safer built environment envisaged in Dame Judith Hackitt's Building a Safer Future report.
