Building Safety Act 2022

A key part of the regulatory framework for higher-risk buildings introduced under the Building Safety Act 2022 is the new Gateway regime which involves the scrutiny by the new Building Safety Regulator (Regulator) of the proposals before the commencement of construction and completion.

The Regulator will be responsible for building control of higher-risk buildings. This is to be achieved through a three-stage Gateway approval system that ensures that consideration is given to building safety risks at each stage of the design, construction, completion, and occupation of a higher-risk building.

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Will the new Gateway Process under the Building Safety Act apply to projects starting in 2023

The new Gateway Regime

There are three Gateway Stages:

Gateway 1

The planning stage. Applicants will need to demonstrate that fire safety matters have been considered.

Gateway 1 came into force on 1 August 2021 through the introduction of the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021. This requires fire safety matters to be incorporated into the planning stage for higher-risk buildings. The HSE will be a statutory consultee, and submission of Fire Statements will be required when seeking planning approval.

Gateway 2

Construction cannot begin unless the Regulator has approved the application.

Before construction can commence, clients (with the help of the duty holders) must submit a building control approval application to the Regulator. Detailed information needs to be provided at this stage, and the Regulator has a proposed 12- week period to approve or reject these building control applications or to approve subject to the fulfilment of certain requirements. It is important to note that the Regulator will monitor any changes to approved building work through a system of change control applications.

Gateway 3

Upon construction, the occupation will not be allowed until the Regulator has completed final inspections and issued a Completion Certificate.

Gateway 3 is intended to confirm that the building is safe for occupation and requires the issue of a Completion Certificate from the Regulator. Clients will be required to submit a Completion Certificate application and provide updated plans showing the size and position of the as-built higher-risk building, key building information, a list of all mandatory occurrence reporting, together with signed declarations from the principal contractor and the principal designer that the works and building comply with the Building Regulations.

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Approval of the application

There is a proposed 12-week period for the Regulator to approve the application for a Completion Certificate. Higher-risk buildings can only be occupied if a Completion Certificate and the building are registered with the Regulator.

Considering the periods for the approvals processes for these Gateways, the application of Gateways 2 and 3 for projects about to start or already under construction could have a significant impact on the works, programme and therefore costs, particularly if the building contract for them has already been signed.

Gateway 1 is already in force, but Gateways 2 and 3 are still to be enacted. How will this be applied to projects that are currently being planned?

A definite answer is not available at the date of this article, but we do indicate a consultation run by the Government last year. However, the result of the consultation has yet to be available, so we only have the consultation to go off.

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Transitionary period

The Government's initial approach to this issue was that any new regime would apply to all buildings immediately after its implementation. However, the consultation, which ended on 12 October 2022, suggested that the Government had moved away from this approach and that the new Gateway regimes would only apply to individual buildings which would be in scope when the work has commenced within a reasonable period from when the new regime comes into force.

In effect, where work has already commenced on a building covered by an initial notice within six months from the day the new regime comes into force, the building will not be subject to the new requirements and will follow the current rules.

The consultation means that it is likely that there will be a transitionary period for buildings commencing within six months from the commencement of the new regime, provided that an initial notice has been submitted or full plans have been deposited by the day that the new regime comes into force.

However, if the initial notice has yet to be submitted or plans have not been deposited when the new regime comes into force, then the new regime will apply if the works have not commenced within six months.

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Commencement

The transitionary period raises the question of what " commencement " is for these purposes. Rather than rely upon existing definitions of commencement from other legislation, the consultation proposed a definition to deal with this.

This states that commencing work will be defined for new buildings as follows:

Completion of the sub-structure of a building up to and including the foundations and any basement levels, the construction of walls up to damp-proof course level, the laying of foul and surface water drainage (within the footprint of the building) and the installation of the ground floor structure; or
Completion of the sub-structure of a building up to and including the foundations and any basement levels, the laying of foul and surface water drainage (within the footprint of the building) and the installation of the ground-level supporting structure.

If the works are not commenced by six months before the regulations come into force, the project will transition to the new system, and a process was mapped out in the consultation for how this might work.

The consultation period ended on 12 October 2022. The Government aimed to respond to it in 12 weeks, following which there will be a process to bring the regulations into effect.

The regulations will likely be brought into force this year. Therefore, if you intend to start on-site this year with a project that would fall within the scope of the new regime, it is essential to keep an eye on these regulations to ensure that you understand how they will be applied to your building.

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Will the New Gateway Process Apply to Projects Starting in 2023?