Building Safety Act 2022 (update)

The new building control regime contained in the BSA introduced a more stringent regulatory framework applicable to the design and construction of buildings generally and for Higher Risk Buildings (HRBs) in particular, presided over by the building safety regulator.  This regime features “hold points” known as gateways. A developer/contractor delivering a HRB will need to achieve compliance with the regulatory requirements at these gateway hold points in order to progress the project delivery. If compliance cannot be demonstrated and “signed off” a project’s progress can grind to a halt. The three gateways set out in the legislation are as follows:

• Gateway 1: Land use planning matters related to fire safety
• Gateway 2: Building control approval for Higher Risk Buildings, and
• Gateway 3: Completion certificates

The building control gateway regime means that approvals are now required from the building safety regulator before works start and before they are signed off as complete. The first gateway came into effect on 1^st August 2021 and is effectively undertaken at planning application stage and  is therefore a developer responsibility undertaken by the developer’s design and planning team. At Gateway 2 (for HRBs) and at Gateway 3 which has now come into effect, it is important for both developer and contractor to consider who will take the contractual responsibility for achieving these building safety regulator approvals, as these responsibilities can be undertaken by either the developer or the contractor.  Whoever accepts the contractual liability for achieving these gateway approvals will no doubt be expected to take the contractual time and money risk for failing to achieve the gateway approvals when and where required. The gateway regime is particularly relevant at present because in addition to the implementation of the Gateway 2 and Gateway 3 procedure we  now have clarity on the transition procedure for the period between the old building regulation regime and the new one. The transition period started on 1 October 2023 and ends on 6 April 2024. The Government has published a circular letter setting out the transition arrangements applicable to the building control gateways with which developers and contractors would be well advised to familiarise themselves. In summary, the transitional provisions set out in the circular will apply to works on existing HRBs or new build HRB works:

• which have been fully detailed and notified to the local planning authority before 1^st October 2023, and
• on or before the 6^th April 2024:
  • the works have been “sufficiently progressed” ,
  • an approval inspector for the works has been registered with building control,
  • where “sufficient progress” has been made the local planning authority is notified of the significant progress.
  • and not before the 6^th April 2024 then the old building safety regime will continue to apply. subject to full plans having been submitted to the local planning authority.

For the purposes of the legislation “sufficient progress” is where construction of the permanent foundations has started. Where transitional provisions apply, the works will be subject to the existing building control system rather than come under the control of the new building safety regulator.