How will the building safety gateway regime work?

In the latest of our series on the Building Safety Bill, John Forde explains what to expect with the gateway inspection regime for higher-risk buildings.

A critical part of the government’s proposed reform of the building industry was the introduction of gateways for the inspection and approval of high-risk residential buildings. The government’s 2019 consultation document set out a detailed three-stage gateway process, to cover the construction and major refurbishment of in-scope buildings, running from the planning stage through the design and construction phase and up to the point the building is occupied.

The draft Building Safety Bill, published in July 2020, sets out the fundamentals of the new regime.

A new national Building Safety Regulator will be responsible for implementing and overseeing the new inspection and approval regime for higher-risk buildings (as they are now called). The regulator is tasked with establishing and overseeing a register of approved building safety inspectors (for the public sector) and building control approvers (for the private sector) to undertake required inspections.

The bill provides for the Building Act to be amended to set out the gateway regime, and imposes criminal liability on those who don’t meet key obligations. The regulator is also empowered to issue compliance notices (requiring non-compliant works to be rectified) and stop notices (ordering building works to stop until non-compliances are corrected), which will be critical in giving the gateway inspections some teeth. The regulator will also be able to require "prescribed documents" to be supplied with building control applications and in a prescribed format.

While the draft bill itself does not set out the gateway requirements in detail, the explanatory notes and impact assessment published with the bill provide a steer on what will be required at each stage.

Gateway 1

Will form part of the existing planning application stage, and will be implemented via amendments to the Town and Country Planning Act 1990.

Duty holders will need to submit a fire statement to the planning authority, demonstrating that fire safety requirements have been considered and incorporated into their proposals, including information on water supplies and emergency fire vehicle access to the building.

The regulator will become a new statutory consultee for all planning applications involving higher-risk buildings, and will provide specialist fire safety input to assist planning authorities in assessing applications.

Gateway 2

Replaces the current ‘deposit of full plans’ stage in the Building Regulations.

The regulator will now be the building control authority for all higher-risk buildings. The client, assisted by other duty holders, will be required to submit ‘key information’ to the regulator demonstrating how the building, once built, will comply with the Building Regulations, which will include:

  • Full plans as defined in the Building Regulations;
  • A construction control plan, describing how building safety will be maintained during the construction phase and the framework for mandatory reporting of safety concerns;
  • A fire and emergency file, setting out key building safety information;
  • A signed declaration from the client that the principal designer and principal contractor meet ‘competency requirements’ as defined in the draft bill; and
  • A ‘key dataset’ and supporting information to demonstrate that the Building Regulations are complied with and that building safety risk will be managed sufficiently.

Gateway 2 provides a ‘hard stop’ whereby construction cannot begin until the regulator is satisfied that the design complies with the Building Regulations and doesn’t contain unrealistic safety management expectations.

Gateway 3

Takes place at the completion/final certificate stage. The client, supported by duty holders, will be required to submit to the regulator information on the final as-built building, including:

  • Updated as-built plans indicating any variations since gateway 2;
  • The construction control plan with complete change control log;
  • An updated fire and emergency file; and
  • A ‘key dataset’ and supporting information, based on the information provided at gateway 2 and updated accordingly.

The client and principal designer and principal contractor will also be required to produce and co-sign a final declaration confirming that to the best of their knowledge the building complies with the Building Regulations.

Once the regulator is satisfied, it will issue a completion certificate for all or part of the building. Clients will also be able to apply for partial completion of the building.

All prescribed information and documents will then be handed over to the accountable person who will be required to register the building before it is occupied, and will be responsible for the safety of the building during its occupation.

As yet, the government hasn’t set out any timescales for submitting gateway applications or response times for the regulator and inspectors to make key decisions. However, the draft bill does make express provision for any decisions of the regulator to be reviewed and appealed. All remaining detail will be covered in secondary legislation.

The gateway process, if passed into law in its proposed form, will require a total rethink of how construction and refurbishment projects for higher-risk buildings are procured, negotiated and operated. As gateways 1 and 2 must both be passed before construction begins, it’s likely that pre-construction agreements and two-stage partnering contracts will be used more frequently to govern duty holders’ responsibilities during these processes.

Clients and contractors will also need to anticipate gateway application costs in their budgets, and decide whether extensions of time will be allowed for delays in the application process and remedial works ordered by the regulator. Contracting parties will also need to think about the duties of care offered by duty holders for their respective contributions to gateway applications, and whether these obligations can be adequately insured.

John Forde is a managing associate at Trowers & Hamlins.

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