Building Control: The impact of the Building Safety Act and Gateways 2 and 3 on Higher Risk Building Projects

From 1st October 2023, a new building control regime commences for higher risk buildings in England. Anyone involved in planning or building a new higher risk building or making alterations to an existing one must follow the new regime.

This article looks at some of the key changes and what this might mean for designers and contractors working on such projects.

The Building Safety Regulator

The Building Safety Act 2022 (BSA) is one of several pieces of recent legislation aimed at reforming safety standards in the wake of the Grenfell Tower disaster.

The BSA amended the Building Act 1984 in two ways.

  1. It placed new requirements on industry and their clients with respect of building safety, and
  2. It bestowed new enforcement powers on Building Control.

The Health and Safety Executive (HSE) became the Building Safety Regulator (BSR) in 2022 when the BSA received Royal Assent.

As well as having new responsibilities for overseeing the entire building control system, from 1st October 2023 the Regulator is the building control authority for high rise (‘higher risk’) buildings, implementing the new regulatory framework for these buildings.

In August the HSE published an overview of the new regime which you can read on the link at the bottom of this article.

What are Higher Risk Buildings?

Higher risk buildings covered by the new regime:

  • have 7 or more storeys, or are 18 metres high or higher, and either
  • have at least 2 residential units, or
  • are hospitals or care homes undergoing design or construction.

Hospitals and care homes of this height are included in the regime only during their design and construction phases, but residential buildings which meet the requirements are required to comply with the regime throughout their life.

The Regulator and Approvals

The new regime which commenced on 1st October 2023 requires the BSR to oversee and give approval of the work that clients, designers and contractors are doing to comply with the requirements of the new regime, in addition to their obligations to comply with the Building Regulations more generally.

The level of information which needs to be provided to the BSR is considerable.

There are also some key points at which information to be provided must be approved by the Regulator:

  1. Before undertaking building work (this point is known as Gateway 2 and is in effect building control approval)
  2. When making major changes to a previously approved application (via a Change Control process) and
  3. On completion and before a building is occupied (known as Gateway 3 and resulting in the Regulator issuing a completion certificate).

A key difference here is that after Gateway 2 (ie Building Regulations) Approval, changes to the approved scheme may require a further approval process.

Alongside these approval processes there will also be a programme of inspections throughout construction, by a registered building inspector together with other specialists in what is known as a Multi-disciplinary Team.

What has really changed?

The fundamental principle which underlies these processes is that building regulations compliance moves away from what the Regulator describes as a “tick box exercise” towards a more comprehensive approach to compliance, with evidence, collaborative working, and much greater oversight. This oversight begins during the Building Regulations phase but continues for the life of the building.

Throughout the process of design and construction, clients, designers and contractors, who have new dutyholder roles under the Act, have a responsibility to:

  • Cooperate and share information with other relevant duty holders, with a specific requirement for communication and coordination,
  • Take all reasonable steps to ensure the work they carry out is planned, managed and controlled in order to comply with all the relevant requirements of the building regulations,
  • Provide evidence to the Regulator at each Gateway or other application. This evidence will become part of the ‘Golden Thread of Information’.

The Golden Thread

The Golden Thread of information is an essential part of how Higher Risk Buildings will be designed, constructed, and maintained. First proposed by Dame Judith Hackitt in her review of the Building Regulations in 2018, the Golden Thread is now defined in summary as:

“The golden thread is both the information that allows you to understand a building and the steps needed to keep both the building and people safe, now and in the future.”

The Golden Thread is the documents, information, and information management processes used to support building safety. Throughout the life of a Higher Risk building, including its construction and alteration, this information needs to be kept accurate, up to date and accessible, in a digital form.

During the process of design, construction or alterations to a High Risk building, information will be contributed to the Golden Thread which will act as an audit trail for the building.

Responsibility for the Golden Thread will rest with the principal designer or principal contractor until the building is handed over, at which point responsibility transfers to the client’s or building owner’s “accountable person”.

The Change Control Process

A significant change which will influence the way projects are carried out is the Change Control Process which kicks in after Building Regs approval. Once a Higher Risk Building receives building regulations approval, any changes will also be scrutinized by the BSR. As we are all aware, sometimes it is necessary to change plans, but now these changes will involve considerably more administration and time.

  1. Recording: Any work that does not comply with the agreed plans, or any changes to procedure, must be recorded as part of the Golden Thread.
  2. Notifiable Changes: Any changes which have an impact on compliance are also Notifiable – the BSR will need to be notified.
  3. Major Changes: Any changes which would undermine the basis by which Building Regs Approval was granted are considered Major and will require a Change Control Application and Approval from the Regulator. This will take a minimum of six weeks from date of application.

Major changes, according to the HSE, would include things like changes to an external wall, or changing a product for one of lower classification regarding reaction to fire.

Notifiable changes would include changes to internal walls, or changing a product or element to one of the same or higher classification regarding reaction to fire.

In addition, the new regime identifies criminal offenses including:

  • Providing false or misleading information to the regulator,
  • Contravening the Building Regulations, and
  • Failure to comply with a compliance or stop notice.

These criminal offenses can now attract severe penalties, such as unlimited fines and up to two years imprisonment.

What this means for designers and contractors

It is not difficult to see why, to keep to programme, clients will wish to keep the number of changes to the Building Regs approved scheme as few as possible for such buildings. Whilst it is still possible to alter specifications, more time needs to be allowed for this and may be difficult unless you are working directly for the client.

Whilst the Act has been in place for over a year, secondary legislation such as this is only gradually coming into force and guidance is still being produced. We are in a time of emerging regulation, and construction companies are adapting accordingly.

Working with large clients such as local authorities, and with major contractors, we at SIGD&T are aware already of projects and procedures being changed due to the new regime.

For example, the conventional Design & Build procurement process may change when more design decisions need to be made confidently before building regulations and not changed during and after a tender process. This might suggest that more partnership type contracts would be attractive.

With a clear need to finalise the design in much more detail before RIBA workstage 4, relationships with the supply chain are even more important. Developing partnerships with manufacturers and distributors will help ameliorate some of the risks associated with early design decisions and avoid or reduce product substitutions in future.

The government has recognised the need to improve procurement practice and has published guidance for public and private sector clients and their advisors to help support a move towards more collaborative forms of procurement. There is a link to this guidance at the end of this article.

How SIG D&T can help

SIG Design and Technology are members of the Joint Competence Initiative (JCI) for the Envelope Sector, an initiative driven by the technical and procurement leads at major UK contractors. The JCI aims to assist the envelope sector to align its training strategies, prove competence and comply with other aspects of the Building Safety Act.

We have been working in partnership with major contractors and designers on relevant projects for decades, particularly in the field of roofing and cladding but also in other areas through our parent company SIG Plc, one of Europe’s leading suppliers of construction products. This is a challenging time for the sector, but our experience puts us in a good position to assist with your Higher Risk Building project.

To discuss how we might assist you call Ross Finnie on 07515 794 417 or contact us via our website.

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