The recently enacted Building Safety Act 2022 (the “Act”) provides for a significant overhaul of the regulatory framework in England and Wales for the approval of higher-risk buildings, being buildings of at least 18 metres (7 storeys) which contain at least two residential units or are hospitals or care homes. This Law-Now provides a review of the anticipated new regulatory framework. For a more general overview of the Act, please see our earlier Law-Now here.
Government guidance issued alongside the Act states that a new regulatory framework is to be introduced for higher-risk buildings including two new approval stages known as “Gateway 2” and “Gateway 3” – “Gateway 1” being the current planning approval process. The Government’s guidance states that Gateways 2 and 3 “will provide rigorous inspection of building regulations requirements, ensuring that building safety is considered at each stage of design and construction”.
The Act itself does not use the term “gateway” and provides only some basic provisions around Gateway 3, leaving the detail of Gateways 2 and 3 to be set out in regulations issued under the Act. A transitional plan published by the Government in July 2021 indicates that these regulations are intended to be promulgated and brought into force within 18 months of Royal Assent to the Act, which was given on 28 April 2022.
Draft Regulations were published by the Government in October last year: the Draft Building (Higher-Risk Buildings) (England) Regulations 2022 (“draft HRB Regulations”). These draft regulations set out a detailed process for Gateways 2 and 3, as well as other approvals required during the course of construction. The Government has recently opened a consultation on other draft regulations also issued in October last year setting out in greater detail which buildings will be subject to the new higher-risk building regime. This consultation closes on 21 July 2022 and it seems likely that a similar consultation will be opened in relation to the draft HRB Regulations. We may therefore see some changes in the process currently envisaged and described in more detail below.
The Government’s guidance says that Gateway 2 will replace the building control deposit of plans stage, before building work starts, for higher-risk buildings. More particularly, it says that Gateway 2 will be a stop/go point and building control approval must be obtained from the Building Safety Regulator before relevant building work starts. As ever, with such regulations, it may prove sensible to have a good understanding of what it means to ‘start work’.
A process for application, review and decision is expected to be prescribed. The Government’s guidance gives an indication of what an application must demonstrate and how an application will be reviewed.
The draft HRB Regulations suggest that the Building Safety Regulator will need to make a decision on an application within 12 weeks of the application or such longer period as the applicant agrees to. It is worth noting that the period of 12 weeks is in square brackets in the draft HRB Regulations which suggests that it may be more likely to be amended than other parts of the draft. Whatever the period ends up being, the option to take longer if the applicant agrees seems likely to put an applicant in an unenviable position were the Building Safety Regulator to ask for it. What to do? Refuse to agree only to see the application then rejected by a Building Safety Regulator concerned that it needed more time to properly discharge its duties? Have hope in the threat of judicial review? Swallow the delay which arises?
The draft HRB Regulations also suggest that if the applicant agrees, the decision can be subject to requirements which must be met. As with the period to make a decision, difficulties may arise if the Building Safety Regulator asks for requirements which involve a subjective element such as not to proceed past a specific stage of construction until further Building Safety Regulator approval of a document is given. No time limits for any such further approval by the Building Safety Regulator from receipt of any such documents seem to be envisaged in the draft HRB Regulations.
A more straightforward requirement is that an applicant must give notice to commence at least 2 days before commencing work.
The guidance indicates several ongoing requirements on those involved in the design and construction process, during construction. The draft HRB Regulations state that an applicant’s entitlement to proceed with a change will be subject to certain requirements: a “notifiable change” is not to be proceeded with until 14 days after notice of it is given to the Building Safety Regulator; and more substantial requirements for “major changes” which are not dissimilar to the initial Gateway 2 process but where the Building Safety Regulator has 4 weeks, not 12 weeks, to decide. Details remain to be published to specify what may constitute a “major change” and a “notifiable change”.
Consistent with the theme of other aspects of the Act, there will be duties on clients to maintain, update and submit ‘golden thread information’ and ‘key building information’.
This, according to the Government’s guidance, will occur at the current completion/final certificate stage when relevant building work is complete. More particularly, the guidance says that Gateway 3 will also be a stop/go point i.e. building control approval must be obtained from the Building Safety Regulator before registering and commencing occupation of a higher-risk building. No doubt the precise meaning of “occupation” will be of significant interest and relevance to many.
It seems that, similar to Gateway 2, a process for application, review and decision will be prescribed. Also similar to Gateway 2, the Building Safety Regulator will need to decide within 12 weeks of an application (also in square brackets in the draft HRB Regulations as with Gateway 2) or such longer period as the applicant agrees to. It is not hard to see an applicant being put in a similarly unenviable position were the Building Safety Regulator to ask for longer.
Provisions are expected to deal with only part of a building passing Gateway 3 which are quite similar to those applying to a whole building but the Building Safety Regulator has only 6 weeks to decide.
Impact on procurement
The learning curve, as various applicants and the Building Safety Regulator work through these requirements for the first time with, no doubt, no little political and media attention, and in the context of (as the Government’s guidance refers to) the Building Safety Regulator having strong enforcement tools where building work commences without first obtaining building control approval, is likely to be steep and, for some, hard.
Applicants may look to apply for Gateway 3 approvals on an anticipated basis such that any decision-making process is not from a standing-start on completion of a building. Whether or not that will be permitted is not clear: but it is clear that the prospect of a complete building having to sit unoccupied for 12 weeks or more pending the Building Safety Regulator’s approval to Gateway 3 will not sit well with many.
Please see our earlier Law Now here as to the impact of these new requirements on construction procurement, both traditional and design and build, and on issues such as practical completion, extensions of time and additional costs.
Building Safety Act 2022
Government guidance on new approvals regime for higher-risk buildings
Government transition plan
Consultation on the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations