The landscape of building safety has changed forever, with Building Safety Act compliance being mandatory for developers and building owners. As the construction industry continues to adjust, there have been several significant challenges. This article will focus on the ongoing bottleneck affecting the industry in the construction of higher-risk buildings (HRBs) due to the Building Regulations Gateways 2 and 3 and will offer practical solutions to manage that risk legally and commercially.
Building Safety Regulator
The new Building Safety Regulator (BSR) replaced the previous building control approval body for all HRBs in England and is tasked with enforcing safety standards and overseeing the entire built environment. Gone too are the private sector, "approved inspectors", so that now there is a clear separation between the builder and regulator; with developers no longer being able to choose the building control body they use or appoint a building control.
Gateways and delay risk
A cornerstone feature of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (Building Regulations) is a requirement for all HRBs to be registered with the BSR. All projects involving HRBs must now navigate three critical safety checkpoints, known as Gateways. This means that approval is required at the planning stage (Gateway 1), before building work can commence (Gateway 2) and before a building can be certified complete and occupied (Gateway 3). This process is designed as a 'hard stop' point until approval is received.
But when the detail of these Building Regulations were released, it immediately sounded alarm bells for developers; who for years had already battled with long delays through the planning process. And indeed, whilst the Building Regulations committed the BSR to determination of: Gateway 2 applications within 8 or 12 weeks and Gateway 3 applications within 8 weeks, the reality for Gateway 2, as of February 2025, is significantly longer, with an average determination of 22 weeks. Of course, "determination" does not mean "approval" and, according to figures released towards the end of last year, the BSR had signed off just 14% of developers’ remediation plans in between 1 October 2023 to 16 September 2024.
The head of operations, planning and building control at BSR, Andrew Moore, suggested that these issues are due to the BSR's outsourced delivery model and not employing any technical staff in-house.
Unfortunately, this leaves the construction industry with serious delays in commencement of construction of high-rise developments, with developers being forced to add months to construction programmes and deal with the additional finance costs involved.
Practical solutions to manage delay risk
Whilst the BSR has reported that they are putting in place extra resources and forming "hit squads" to tackle the identified problems, from a practical perspective, developers should anticipate delays in the Gateway 2 and 3 application approvals through the programme.
From a contractual perspective, parties should consider who is best placed to manage this risk. This may involve allowing contractors an extension of time for delays in statutory approval and incorporating clear cost fluctuation drafting to enable parties to maintain the material and labour costs during a delay period.
It is worth noting that works to existing HRBs are also caught by the new regime, however the Building Regulations does allow a partial exemption for works to commence prior to Gateway 2 being approved. The exemption relates to emergency repairs which are "necessary 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". However, there is a need to submit a regularisation certificate to the BSR once works are complete and to ensure the usual compliance with the Building Safety Act. In other words, it is not a method to circumvent the process as the BSR will review the appropriateness at the notification and regularisation stages.
Concluding thoughts
As the BSR continues to catch up on the backlog, the construction industry will be forced to tackle the challenges that the new regime brings. There is no real merit to be gained in fighting the system and the best approach is regular engagement with the BSR guidance and industry experts to understand the impact of the regime on your project and plan accordingly. In time, we hope that the BSR will be able to upskill and add resources to process and approve applications within the promised timescales. Until then, it will be for developers to familiarise themselves with the information needed to submit full applications in plenty of time. To quote Mark Twain: "The secret to getting ahead, is getting started."
