Gateway and dutyholder regime: government response and regulations published
The provisions will be implemented through secondary legislation (The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 and The Building Regulations etc. (Amendment) (England) Regulations 2023)) that will come into force on 1 October 2023.
As expected, the response confirms that much of the detail remains unchanged from the government’s original consultation proposals, with the necessary levels of detail added.
The proposals contained in the original consultation were discussed in Shoosmiths' previous update and response to the consultation - highlighting some areas where more consideration and detail may be required. The consultation received 160 responses and there are some positive areas where the government has listened to the industry’s comments and adjusted its position.
Timeframe for considering Gateways 2 and 3 applications
Whilst the time period for approval of building control applications at Gateway 2 - and the consequent hard-stop to starting work - has remained at 12 weeks as proposed, the time period for approval of applications for completion certificates - and partial completion certificates - at Gateway 3 has been reduced from 12 to eight weeks.
The consultation response acknowledged the industry’s feedback on the 12-week period and the adverse implications for the industry, institutions and also occupiers that would follow lengthy completion procedures.
On receipt of applications for building control and completion certificates, the Building Safety Regulator (BSR) will also notify if the application is not valid within a relatively short timescale. This will provide a prompt notification to highlight any issues with the application and alleviate concerns that timescales could expand if only advised of an invalid application at the end of the application period.
Gateway 2 submission
The government is clear that the responsibility for submitting the building control application at Gateway 2 will sit with the client “as it will be the client who will have overall responsibility for the project”.
The building control approval application at Gateway 2, can be submitted by the client or alternatively by the principal contractor, principal dutyholder or another person may submit the application on their behalf. However, where the application is submitted on the client’s behalf, it will be a requirement that the client signs the application to ensure it is “robustly involved in the submission of the application”. This will require the client to confirm they agree to the application being made and that the information contained in the application is correct.
The consultation response also emphasises that pre-submission consultation with the BSR is to be encouraged to minimise any issues when the formal application is submitted. Early engagement with the BSR to discuss draft plans and design approaches “should support the submission of valid and accurate applications, speeding up the determinations process”.
In terms of the information submitted at Gateway 2, the government has removed the requirement to include a planning statement as “it would duplicate information which is already publicly available”. The “design and build approach document” has been renamed “the building regulations compliance statement” to avoid confusion with the contractual connotations of “design and build”.
Timing of Gateway 3 application
The original consultation asked for views on when the work will be deemed completed for the purpose of making a completion certificate application and proposed “either after all notifiable work is completed or when all work including snagging is completed”.
The response confirms that the government intends that a completion certificate application can be made “on the completion of notifiable building work”.
In terms of snagging, the government expects the BSR and dutyholders “to engage on any snagging issues to be addressed on the completion of notifiable building work” and that the government intends to work with the BSR to “provide clarity about snagging”. This is not as clear as it could be to inform what work could run in parallel with an application, such as finishing works, which would help to mitigate the approval period. However, there’s an opportunity to discuss that with the BSR as part of the engagement process that is being encouraged.
Changes during construction
For major changes (defined in Regulation 26 of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023), the government has retained the six week proposed period for the BSR to consider change control applications during construction. This is despite concerns raised that this delay could impact project timings and finances
For notifiable changes (defined in Regulation 26), the government has removed the 10-working day proposed period that a developer would have to wait before carrying out this type of change. Instead dutyholders will be required to notify the BSR before carrying out work constituting a notifiable change, with the work then able to “proceed at risk”. The BSR will have the power to upgrade a notifiable change to a major change and may require the work to be opened up or remediation to be carried out and consequently “developers should proceed with caution when carrying out notifiable changes”.
The detail of the transitional provisions for the new building control regime for HRBs has been confirmed. It covers various scenarios, but significantly, for projects where initial notices or full plans are deposited pre-1 October 2023 - and not rejected - and developer’s wish to benefit from the transitional six month period to remain outside of the new BSR regime and under the existing building control regime, works must be “sufficiently progressed” by 6 April 2024.
For new HRB works, this means the placement of permanent foundations must have started - meaning the pouring of concrete for the permanent placement of the trench, pad or raft foundations or the permanent placement of piling has begun. That is a significantly lesser stage than previously indicated in the consultation and represents a concession to industry concerns about the amount of work necessary within the transition period to demonstrate sufficient progress in the works.
If the project is under an approved inspector (AI) that issued the initial notice, the AI must become a registered building control approver on 6 April 2024 for the project to remain under its supervision and, if not, the project will transfer to the BSR. It’s, therefore, important that any developers using AIs and wishing to benefit from the transitional arrangements must check their AI is working on registration as a building control approver.
The government confirmed that the principal designer and/or the principal contractor can be appointed to fulfil the roles under both the Construction (Design and Management) Regulations 2015 and the new dutyholder regime “providing the competence requirements are met”.
The government stated that guidance will be published by the BSR on the dutyholder roles and responsibilities to “provide clarity to the industry” and that stakeholders have suggested that this includes how to assess the competence of those appointed to the roles.
Regarding the duties of principal designers and designers, the government has acknowledged the difficulties of proposals contained in the original consultation for strict liability for duty failures and the absence of professional indemnity insurance for such strict liability. It has now revised this, referencing to duties to “take all reasonable steps”.
This should hopefully assist the procedures to operate that may have been an issue if the professionals refused to take on the dutyholder roles due to the absence of PI coverage. However, this has been indicated to be an interim measure and the government still intends to implement the strict liability requirement for designers and principal designers “and to continue to work with both the industry sector and the insurance industry with a view to introducing the requirements in due course”.
For HRBs, it is still the government’s intention that the principal designer and principal contractor must be appointed before the building control application is made at Gateway 2 for higher-risk buildings. This will impact on the way these projects are procured going forwards.
The response provides the industry with greater certainty as to the detail of the new gateway regime for HRBs and dutyholder regime.
Further guidance is expected from the BSR and a key theme throughout the response is a recognition by the government that further guidance is necessary. The government has also confirmed that the BSR “will be sufficiently resourced to fulfil its building control function, including pre-application engagement with those intending to carry out higher-risk building work”. This is perhaps recognising that there has been some speculation as to the level of resources available to the BSR.
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