Episode 166 - Gateway 2 Process under the BSA

This week we will be talking about the Gateway 2 process introduced by the Building Safety Act 2022.. This episode content meets PC3 - Legal Framework & Processes of the Part 3 Criteria.

Resources from today's episode:

Websites: 

• https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/why-do-hrb-applications-to-the-building-safety-regulator-fail
• https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/what-is-the-bsr-doing-to-ease-delays-in-the-gateway-2-application-process
• https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/building-safety-act-gateway-2-submissions-for-architects

Official Legislation & Guidance:

• https://www.legislation.gov.uk/uksi/2023/909/pdfs/uksi_20230909_en.pdf
• https://www.legislation.gov.uk/uksi/2010/2214/pdfs/uksi_20102214_en.pdf
• https://www.gov.uk/guidance/building-control-approval-for-higher-risk-buildings
• https://www.gov.uk/guidance/preparing-information-for-a-building-control-approval-application

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Transcript

Episode 166:

Hello and Welcome to the Part3 with me podcast. 

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I am your host Maria Skoutari and this week we will be talking about the Gateway 2 process introduced by the Building Safety Act 2022. Todays episode meets PC3 of the Part 3 Criteria.

As previously discussed on the podcast, with the introduction of the new Building Safety Act which came into force in October 2023, the act introduced a new Gateway System to better manage key critical checkpoints during the building’s design and construction to ensure accountability and safety at each stage. 

As you are already aware, the Gateway system is split into three gateways. 

• Gateway 1 focuses on obtaining planning permission by demonstrating the proposed design meets necessary safety requirements. 
• Gateway 2 involves rigorous inspections during construction to verify adherence to approved plans. 
• Gateway 3 ensures the building is fit for occupation

Today, we will be focusing on the Gateway 2 process and what information you require when submitting the application to the Building Safety Regulation for review. Gateway 2 seems to be at a standstill at the moment with the Building Safety Regulator taking twice as long to approve Gateway 2 projects due to lack of internal resources to actually review the applications and applicants not submitting the required information. The target periods originally outlined were 12 weeks for new build and 8 weeks for works on existing buildings. The Building Safety Regulator revealed that the average time taken for an approval currently has been 25 weeks, more than double the targeted timeframe for new build Higher Risk Buildings.

As such, the Regulator has started to put various processes in place to improve this by ramping up recruitment and releasing official guidance on preparing information for a building control application and Building control approval for higher risk buildings which is what we will look at today. The Health and Safety Executive is also working with the Construction Leadership Council on further guidance that will address some of the challenges that have emerged, recognising that people on both sides of the fence can work together to improve the situation.  

So what does the Building Safety Regulator look out for in the first instance when a Building Control Application is submitted under Gateway 2:

• Firstly, they check that the proposed work will comply with building regulations
• The client will properly manage the project
• The client appoints people to work on the project who are competent to do their job

Before the client starts work on site, therefore, they must submit the building control application, then they will be granted building control approval for the work, then fulfil any requirements which have been requested to be undertaken under the building control approval and then the client must notify the regulator of the date on which the work or stage of work is to start.

Now in terms of the Building Control Approval Application itself, it must be in writing, signed by the applicant and must include the information stated in Regulation 4 & 12 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 relating to new and existing high risk building works respectively. The information to be included, therefore, consists of:

•  the name, address, telephone number and (if available) email address of the client;
• the name, address, telephone number and (if available) email address of the principal contractor (or sole contractor) and the principal designer (or sole or lead designer);
• a statement that the application is made under the Building (Higher-Risk Buildings Procedures Regulations 2023;
• where HRB work consists of work to an existing building, a description of the existing building including:
• details of its current use, including the current use of each storey;
• its height as determined in accordance with regulation 5 of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023;
• the number of storeys it has as determined in accordance with regulation 6 of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023;
• the number of flats, the number of residential rooms and the number of commercial units contained in the higher-risk building;
• And a description of the proposed works.
• If its a new building, then provide a description of the proposed HRB work, including: 

1. details of the intended use of the higher-risk building, including the intended use of each storey;
2. the height of the higher-risk building as determined in accordance with regulation 5 of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023;
3. the number of storeys in the higher-risk building as determined in accordance with regulation 6 of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023;
4. the number of flats, the number of residential rooms and the number of commercial units it is proposed the higher-risk building will contain;
5. the provision to be made for the drainage of the higher-risk building;
6. where paragraph H4 of Schedule 1 to the 2010 Regulations imposes a requirement, the precautions to be taken in the building over a drain, sewer or disposal main to comply with the requirements of that paragraph;
7. the steps to be taken to comply with any local enactment that applies;
8. a statement as to when it is proposed the work is to be regarded as commenced in accordance with regulation 46A (lapse of building control approval: commencement of work) of the 2010 Regulations.

Now in addition to the information mentioned to be included within the application, the building control approval application for HRB work must be accompanied by:

• a plan to a scale of not less than 1:1250 showing:

1. the size and position of the building and its relationship to adjoining boundaries;
2. the boundaries of the curtilage of the building, and the size, position and use of every other building or proposed building within the curtilage;
3. the width and position of any street on or within the boundaries of the curtilage of the building;

• Alongside any other plans as necessary to show that the HRB work would comply with all applicable requirements of the building regulations, including:

1. a competence declaration from the principal designer, the principal contractor and any other person appointed, in relation to the work, as at the date of the building control approval application for HRB work, a building control approval application for a stage of HRB work or the building control approval application for work to existing HRB, and all must be signed by the client;
2. a construction control plan, which describes the strategies, policies and procedures the client has adopted for the HRB work, a stage of HRB work, or work to existing HRB to comply with the requirements of the Building Regulations 2010;
3. a change control plan, which sets out the strategies, policies and procedures the client has adopted to ensure any controlled change takes place in accordance with regulation 18 (change control), and to log each controlled change in accordance with regulation 19 (change control: record-keeping);
4. a mandatory occurrence reporting plan, which describes the MOR systems operated by the principal designer and principal contractor that must be in place before the building work starts;
5. a Building Regulations compliance statement, which sets out the approach taken in designing the proposed higher-risk building or in designing the work to be carried out on the higher-risk building and the building standards applied;
6. a fire and emergency file, which sets out matters considered when assessing building safety risks identified, the proposal adopted and approaches taken when designing to ensure compliance with building safety risks and regulations and the measures, strategies and policies proposed by the owner building to ensure anyone in it can be safely evacuated in an emergency;
7. where the applicant proposes occupation of part of the building before completion of the HRB work, a partial completion strategy if it is intended to occupy any part of the building while building work continues;

• Now where the application is made by someone on behalf of the client, a statement should be included signed by the client confirming they agree to the application being made and that the information contained in the application is correct.

So once this information is submitted to the Building Safety Regulator, the regulator must then confirm to the applicant that the application has been validated, given all information provided is correct, and determine it within 12 weeks beginning with the date the application is received by the regulator or within such longer period as at any time the regulator and the applicant agree in writing.

If the information included within the application is not valid, then the regulator must again notify the applicant explaining why the application has not been validated. 

Before determining a building control approval application for HRB work or a building control approval application for a stage of HRB work the regulator must consult:

• the enforcing authority (within the meaning of article 25 of the Regulatory Reform (Fire Safety) Order 2005(a)) for the proposed higher-risk building, and
• where paragraph H4 of Schedule 1 to the 2010 Regulations imposes requirements in relation to the work, consult the sewerage undertaker for the proposed higher-risk building.

Now when it comes to determining an application, building control approval applications for HRB work or stage of HRB work:

• The regulator must grant the building control approval sought in a building control approval application for HRB work or a building control approval application for a stage of HRB work unless the application or any document that accompanied the application:

1. does not comply with the requirements of regulation 4 or any direction relating to the application or the document given by the regulator under regulation 59 (electronic submission and directions);
2. is not sufficiently detailed in any respect to allow the regulator to determine whether the HRB work or the stage of HRB work would contravene any applicable requirement of the building regulations;
3. shows the HRB work or the stage of HRB work would contravene any applicable requirement of the building regulations;
4. shows the strategies, policies or procedures in relation to the HRB work or the stage of HRB work (including in relation to controlled changes, mandatory occurrence reporting, competence of persons or sharing of information and co-operation) would contravene, or would be likely to contravene, the requirements under the regulations. 

If one or more of these reasons apply, the regulator may reject the application, or with the written consent of the applicant, grant the building control approval sought in the application subject to one or more requirements.The types of requirement that may be imposed include:

• a requirement to provide a specified plan or document, or a revised version of a specified plan or document, within a specified period;
• a requirement that work does not proceed beyond a specified point until a specified plan or other document, or a revised version of a specified plan or other document, has been given to, and approved by, the regulator.

Once the application is determined, the regulator must notify the applicant of the outcome of the application within the period referred to in regulation 5 by either providing:

• A notice that the application has been rejected and give the reasons for rejection, or:
• A notice that the building control approval sought in the application has been granted subject to a requirement must specify the requirement imposed.

So that is the Gateway 2 process as outlined under the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. 

Now one of the reasons the process is taking longer than anticipated is due to requests for additional information due to the insufficient level of detail provided by applicants. 

Over time, the level of detail submitted for building control approval has diluted as a consequence of anticipating addressing further detail via condition due to client prescribed procurement strategy, limitations on the design team’s appointments, cash flow, or even industry practice, but this can lead to a deviation from initial design intent and erosion of compliance that industry are looking to mitigate and plan, manage and monitor to ensure compliance is maintained and design intent remains from design work to building work. The difference now is the detail necessary to ensure compliance with the relevant requirements must be collated and presented at the Gateway 2 application stage for approval.

A key document which has been identified as been the most poorly understood and not provided in the appropriate format and level of detail is the Construction Control Plan. This is the document that describes the strategies, policies and procedures the client has adopted for the HRB work, a stage of HRB work, or work to existing HRB to comply with the requirements of the Building Regulations 2010. 

The expected content of the Construction Control Plan is set out in paragraph 2 of Schedule 1 of the Higher-Risk Building Procedures Regulations which includes setting out:

• the strategies, policies and procedures the client has adopted for planning, managing and monitoring the HRB work, a stage of HRB work or work to existing HRB so as to ensure compliance with:

1. the applicable requirements of the building regulations and to record evidence of that compliance including describing the arrangements the client has adopted to maintain the golden thread information;
2. the duties in Chapter 4 (duties of dutyholders) of Part 2A of the 2010 Regulations;

• the strategies, policies and procedures the client has adopted to identify, assess and keep under review the competence of the persons carrying out the HRB work, a stage of HRB work or work to existing HRB or involved in the design of the higher-risk building or design of the building work to the higher-risk building, including the procedures to be followed:

1. to determine whether a serious sanction (as defined in regulation 11E of the 2010 Regulations) has occurred in relation to a person to be appointed;
2. to consider any past behaviour in relation to any serious sanction which might call into question the suitability of a person to be appointed;
3. if a person in relation to which a serious sanction has occurred is appointed, to prevent a repeat of the behaviour;

• the strategies, policies and procedures the client has adopted to support co-operation between designers, contractors and any other persons involved in the HRB work, a stage of HRB work or work to existing HRB, including the sharing of all necessary information;
• a schedule of each appointment which has been made as at the date of the application, giving the name of:

1. the person who the client has appointed as the principal contractor (or sole contractor);
2. the person who the client has appointed as the principal designer (or sole or lead designer);
3. any other person (excluding individuals except where they are a sole trader) the client has appointed to work on the project;
4. any person (excluding individuals except where they are a sole trader) the principal contractor (or sole contractor) has appointed to work on the project, and
5. any person (excluding individuals except where they are a sole trader) the principal designer (or sole or lead designer) has appointed to work on the project, and a summary of their responsibilities;

• the policies the client has adopted to review the construction control plan.

The common misconception with this document is that the list items required under CDM regulations, which is a completely separate requirements and illustrates the level of misunderstanding among some duty holders. 

Most HRB applications are failing not because specific design elements are not compliant, but because the application does not provide required documents, sufficient detail, or sufficient user information, to allow the BSR to make a judgement on the project’s compliance. 

It is recommended that applicants view a Gateway 2 application like they would view a Gateway 3 application in as much as it sets out what the same ‘agreed documents’ will be at completion. If the Principal Designer focuses on what will be needed from the Principal Contractor at Gateway 3 to demonstrate compliance, that will help produce a good Gateway 2 application.

There’s a lot of information and guidance being continually released with relation to Gateway 2 which I will cover in future episodes.

To sum up what I discussed today:

• Gateway 2 is a mandatory checkpoint before construction begins on Higher-Risk Buildings (HRBs), ensuring full compliance with building regulations and dutyholder competence.
• Currently, applications are taking an average of 25 weeks—more than double the target set by the Building Safety Regulator of 12 weeks for new HRB’s and 8 for existing—mainly due to under-resourcing at the Building Safety Regulator and incomplete or unclear submissions.
• To assist, the Building Safety Regulator has release official guidance to support applicants whereby they must submit detailed plans, building descriptions, and a full set of supporting documents, including competence declaration, a Construction Control Plan, Change Control Plan, building regulations compliance statement, Fire and Emergency File, mandatory occurrence reporting plan statement, partial completion strategy (if applicable) and developer statement.
• It is recommended that applicants view Gateway 2 applications like they would view a Gateway 3 application in as much as it sets out what the same ‘agreed documents’ will be at completion and refer to the provided guidance which I have provided links to in the episode notes.