Snakes and Ladders – Delays with the HRB Gateways
The construction industry is currently grappling with significant delays in the approval process for Higher-Risk Buildings (“HRBs”), primarily caused at Gateways 2 and 3 of the Building Safety Act (“BSA”). The key problem appears to be that the Building Safety Regulator (“BSR”) is inadequately resourced to manage the volume of applications it is receiving. This situation has compounded the challenges applicants face, often resulting in avoidable rejections due to a lack of clarity on the requirements for achieving approval under the Gateways – the rejection is like the dreaded fall down the snake in the game of snakes and ladders, with rejected applications falling to the back of the queue.
The BSA was introduced following the Grenfell tragedy and aims to enhance safety regulations for HRBs. Under the BSA, HRBs are defined as buildings that are either 18 meters or higher, or have at least seven storeys, and contain at least two residential units.
The BSA introduced several “Gateways” that a developer needs to overcome for the completion of HRBs.
- Gateway 1 requires developers to demonstrate that fire safety measures have been taken into account in their planning applications. The applicant must provide a fire statement for full planning applications. HSE will assess each application and provide advice to the LPA, in relation to fire safety matters.
- Gateway 2 is the building control approval application stage. This focuses on the design and construction of HRBs where the BSR satisfies itself that the design of the building meets building regulations. This gateway provides a ‘hold point’ where the construction works cannot commence until the BSR is satisfied that the design meets the functional requirements of the building regulations. This is where the big delays are being encountered.
- Gateway 3 deals with the final inspection and sign-off before occupation.
The intention is to ensure that safety considerations are embedded at each stage of the process. This is obviously extremely important, but the BSR’s limited resources and ambiguous guidelines regarding the regulatory framework have contributed to significant, and arguably avoidable, delays in processing applications. Developers often find themselves caught in a protracted approval cycle, navigating an unclear regulatory framework that lacks instructions on how to comply with each gateway. Although the BSR plans to establish a new advisory service aimed at clarifying the functional requirements of the building regulations and intends to recruit additional experts, applicants are left to navigate the current landscape with trepidation at the potential delays and with caution. Therefore, it is imperative developers and applicants are aware of the importance of getting their applications right the first time.
As set out in the BSA, the application process for new HRBs should take up to 12 weeks, while applications for existing HRBs are expected to be addressed within 8 weeks. Unfortunately, these timelines are often not adhered to, leading to a frustrating experience for developers and stakeholders involved in the process. The disparity between expected and actual timelines reflects a systemic issue within the BSR, where the sheer volume of applications overwhelms its capacity.
How to avoid the delays and climb that ladder
Where the BSR fails to meet these specified timelines, the latest government guidance suggests that applicants should consider submitting a non-determination application to the Secretary of State (“SoS”) for Levelling Up and Housing. This application is made under Section 30A of the Building Act 1984 and can be initiated by emailing RB.non-determinations@levellingup.gov.uk. If an application is deemed successful, the SoS is required to determine the developer’s original application or appoint someone to do so. However, it is crucial to note that there is no statutory timeframe within which the SoS must act, potentially leading to a further lengthy and unenviable bureaucratic process with limited redress for applicants practically. So, this is far from an ideal solution.
Given the above “mainstream” remedy is unlikely to achieve the desired outcome, in addition to addressing the associated risks of such delays from the outset within the relevant development agreement / buildings contract, we recommend all parties exploring the more inventive options available. The team here at Clarke Willmott has recently assisted developer clients in exploring all options and strategies available to it to get to the front to the BSR’s queue and climb that ladder. We’d be pleased to consider these more creative strategies with anyone fearing the worst about the dreaded BSA Gateways.
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