Dame Judith Hackitt’s review of building safety law following the tragedy of Grenfell Tower in 2017 identified many failings in the legislation which was designed to maintain standards in construction and for the protection of persons from defective design and workmanship. A key failure identified was “weaknesses at key intervention points” throughout the lifecycle of buildings in terms of their design, construction and subsequent use and occupation.

In part 2 of Dame Hackitt’s report “Building a Safer Future - Independent Review of Building Regulations and Fire Safety” a new legislative regime of ‘gateways’ was proposed.

In this insight we discuss how this proposal was implemented via the Building Safety Act 2022 (and secondary legislation), and highlight the key considerations for contractors and employers alike.

When do the ‘gateways’ apply?

The gateways apply to High-Rise Buildings, which is defined under the Building Safety Act 2022 (BSA 2022) as:

• buildings of 18 Metres in height or at least seven storeys; and
• containing at least two residential units or is a care home/hospital.

There are certain exclusions which are beyond the scope of this insight, and the definition is slightly different in Wales. The Welsh Assembly also has the power under The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 (HRB Regulations 2023) to set out its own gateway requirements, which is also beyond the scope of this insight.

What are the ‘gateways’?

There are three gateways in total:

1. planning stage
2. building control stage (before works start on site)
3. pre-occupation stage (once works are complete).

At each ‘gateway’ there are a series of checks and reviews led by the new Building Safety Regulator (BSR), which must be signed off before a project can proceed to the next stage. The intention is clearly to ensure that the BSR has regulatory oversight throughout the construction of new high-rise buildings. Failure to observe these ‘gateways’ can constitute a criminal offence punishable by way of a fine and/or imprisonment.

Gateway 1 (planning)

This gateway has been around since 1 August 2021, and was brought in by the Town and Country Planning (Development Management Procedure and Section 62 Applications) (England) (Amendment) Order 2021.

Notably, gateway 1 introduced:

• a requirement to include a fire safety statement within a planning application (with certain exemptions i.e. change of use & outline planning permission)
• the BSR as a statutory consultee
• the Health and Safety Executive (HSE) as a statutory consultee.

Fire safety objectives need to be dealt with at the outset of development planning to avoid an application being rejected. Dialogue will need to be established with the BSR and HSE as early as possible to avoid decision notice delays.

Gateway 2 (building control)

Gateways 2 and 3 were introduced via the HRB Regulations 2023, which came into force on 1 October 2023.

The BSR has now become the approver for the purposes of building control approval for High-Rise Buildings. Developers will need to submit a building control application to the BSR, which must be approved prior to works commencing.

The HSE has provided practical guidance here on making an application. It should be noted that gateway 2 is geared towards new high-rise buildings; lower-risk work to existing buildings is generally exempt from gateway 2.

The BSR has 12 weeks (eight weeks for work to existing buildings) to make a decision on receipt of the application, but it can request an extension of time if required to make a determination. Developers must ensure that they build this into their programme; particularly given how new the BSR is and therefore its efficiency and procedures are relatively unknown. The BSR has an obligation to consult with various emergency services, experts and stakeholders meaning that delays may be inevitable. 

 The BSR is able to set out any requirements it has in respect of building safety on review of the application. These requirements must be fulfilled prior to works commencing.

Developers must now also provide five working days’ notice to the BSR before they put a shovel in the ground.

The BSR has a range of enforcement tools at its disposal if works commence before it has provided approval. It is also a criminal offence under the BSA 2022 to skip gateway 2 where it is applicable. 

Gateway 3 (pre-occupation)

Upon completion of the project (and before anyone occupies the building), a final application to the BSR (as building control approver) must be made for a building control completion certificate. Until this certificate is given by the BSR, the building cannot be occupied.

Interestingly, legislation doesn’t account for snagging/minor defects. In a building contract, practical completion can be certified notwithstanding that minor items need to be addressed. However, for the purposes of a completion certificate being provided by the BSR, it would follow in the absence of legislative guidance that the building must be ‘as built’ according to the requirements, plans, and specifications approved by the BSR at gateway 2.

The government provided guidance on this issue here - in short, early dialogue will be needed. If snagging/minor defects are anticipated in advance of practical completion, it is worth notifying the BSR as soon as possible. In any event, delays to occupation (and therefore onward sales/lettings) should be anticipated.

The BSR has eight weeks from receipt of the gateway 3 application to make a decision. Again, this must be accounted for within the development programme. In practice, developers may wish to consider adding a buffer zone to gateways 2 & 3, and implement earlier procedures into their underlying building contracts to account for potential snagging issues holding up the gateway 3 certificate.

Considerations for building contracts

• Gateway approval: where does responsibility sit? Who has responsibility for facilitating documents/information required by the BSR to get through each gateway?
• Consequences for delay: where does the risk sit?
• Amendments required to materials, design, and programme as a result of Gateway consultation: who bears the cost?

How Capsticks can help

We are construction and building safety experts. We have extensive construction expertise and provide support to our clients from the development of their business case through to completion of the project. We work with our clients to support the development of their construction strategy and to appoint their professional team and build contractor.

We have experience of all of the industry standard form contracts such as NEC and JCT, as well as bespoke arrangements, sub-contracts, consultant appointments and collateral warranties.

To discuss how the gateways regime could affect your projects, including advice on bespoke contract amendments to account for the gateways, please get in touch with Spencer Vella Sultana or Wilton Thomas.