Building Safety for Higher Risk Buildings – How is the Regulatory Regime bedding in?

In the wake of the publication of the Grenfell Tower Inquiry Phase 2 Report, we consider how the new regulatory regime for higher risk building works (HRB works) is bedding in and potential implications for HRB works.

The gateway process for HRB works

Gateway 2

• After securing planning permission for the intended HRB works, building control approval must be obtained from the building safety regulator (BSR).  A fundamental component is demonstrating how the relevant requirements of the Building Regulations will be met.
• The HRB works must not be commenced before the BSR has given its approval.  As part of giving its approval, the BSR can require a specified plan or document or a revised version to be provided within a specific period of time or before work can proceed beyond a particular point.  The applicant’s permission to the requirement must be obtained but presumably the alternative is that the BSR may refuse the application.
• Process:
  • Validation – Upon receipt of the application, the BSR validates the application, checking for example, supporting documents required to accompany the application have been provided.
  • Assembly of Multi-Disciplinary Team (MDT) - once validated, the BSR assembles the MDT who work with the BSR to assess the application and compliance throughout the build and at completion.
  • Determination Period – 12 weeks for new build HRB works.  8 weeks for existing HRB works.
  • Extensions - BSR can agree extensions to these timescales.

Construction Phase

Before starting works, two notices must be issued to the BSR, the first five working days before work is due to start and the second within five working days after work has commenced.

During the construction phase:

• The MDT will undertake site visits at agreed milestones during the works.
• Major and notifiable changes are regulated through a change control procedure.  Major changes require prior approval by the BSR (6 weeks approval period).  Notifiable changes may proceed only once notified to the BSR, proceeding with the risk that the BSR later determines that the change is instead a major change with the potential for the BSR to require its reversal.
• There is mandatory occurrence reporting for any safety occurrence (structural safety or fire safety) relating to the design of a building or if an incident or situation occurs during construction which, if the building were to be occupied without the risk being remedied, is likely to present a risk of a significant number of deaths or serious injury to a significant number of people.

Gateway 3

• Once the HRB works have been completed, the building control completion certificate can be applied for.  It is a criminal offence to allow residential units of the HRB to be occupied before the building control completion certificate has been obtained and the HRB registered.
• Process:
• Validation - The BSR will again first validate the application.
• Determination – 8 weeks period from submission.   The BSR recommends providing supporting documents as soon as possible to give the MDT a staggered start in reviewing the documentation.
• Extensions - BSR can agree to extend the 8 weeks period.
• The regulations do allow for the applicant to apply for partial completion certificates, though the BSR’s guidance states that a partial completion strategy would not generally be suitable for individual flats or floors of flats within a building.

Implications for HRB works

Areas of uncertainty for the Gateway 3 process

There is some uncertainty around when the Gateway 3 application can be made and if some works can still be ongoing. Whilst there is no definition of completion, fundamentally, all notifiable building work which requires building control approval must be completed.  

The application is required to include a notice stating the date on which the building work was completed.  It is unclear whether this should be the official practical completion statement issued under the building contract or whether a separate notice will suffice.  A separate notice will more readily allow the client to require the Gateway 3 completion certificate as a condition precedent to the issue of the statement of practical completion under the building contract, should the contractor be willing to take this risk.  

Are the applications being dealt with within the statutory timescales?

According to the Q&A for Parliamentary Questions , for the period to 30 June 2024:

• Gateway 2 applications for new HRBs: 62
• 4 determined within the 12 weeks period
• 22 extensions agreed
• 10 refusals
• Gateway 2 applications for works to existing HRBs: 606
• 12 determined within the 8 weeks period
• 271 extensions agreed with the applicant
• 260 applications refused
• Gateway 3 applications for existing HRBs: 14
• 6 extensions agreed
• 4 refusals

It is not clear what happened to the 26 applications for new HRB and 63 applications for existing HRBs, which have neither been determined, extended or refused. It is possible they were withdrawn or they may have failed to pass the first hurdle of the validation checks.  The BSR does not provide any data on these applications.  

It is worth noting that the BSR reported that one of the major issues encountered with applications is the failure to provide a detailed explanation of how the design of the HRB works will achieve the relevant requirements under the Building Regulations.

What happens if the BSR fails to determine an application within the statutory timescales?

• Non-determination application: The applicant can, within 6 weeks, apply to the Secretary of State albeit there is no timescale for the Secretary of State to make a decision.  Once made, the applicant cannot return to its original application with the BSR. There is a right to appeal the Secretary of State’s decision to the First Tier Tribunal within 21 days.

What happens if the applicant disagrees with the BSR’s decision?

• The applicant has 21 days to apply to the BSR for it to review its decision.  The BSR then has 13 weeks to make its determination.  
• To appeal that decision, the applicant has a further 21 days to apply to the First Tier Tribunal to appeal the decision.

Where do we go from here?

Presently, uncertainty prevails around how long it will take to get through these gateways, compounded by an unappealing appeals process leaving clients to grapple with more issues including:

• Will communications with the BSR/MDT identify where fault lies for the delays in approval process or the reason for the refusal (with them, the contractor or others) and therefore potential liability for time / cost implications for the delay / refusal?
• As the industry starts to get more comfortable with the new regime:
• Will members of the professional team be more willing to take on the role of principal designer under the Building Regulations or will they continue to press for design and build contractors to take the role at earlier design stages?  How will that align with hybrid design and build procurement, when the design team are typically not novated to the contractor until the construction phase is ready to proceed?
• Will single stage procurement return to the HRB construction market or will two stage procurement be the popular choice?

Finally, whilst we expect the new regime will stabilise over the next 18/24 months; that is not to say that the rug won’t be pulled from under the industry’s feet with further changes to the regulations or widening the scope of the definition of HRB, placing more pressure on the BSR’s resources.