Building Safety Gateways for new higher risk buildings

As mentioned in my colleague, Lauren Michaelides’ recent blog, the online portal for registration of in-occupation higher risk building is now open and the principal accountable person must register all existing higher risk buildings by 1 October 2023.

In addition to the requirements in relation to existing higher risk buildings, the Building Safety Act proposes a number of additional steps – gateways – which must be achieved in relation to any new higher risk buildings.

It is currently anticipated that there will be three gateways for new Higher-Risk Buildings to complete before they can be occupied and that the introduction of these gateways will be dealt with by changes to the Building Safety Act.  These gateways cover three separate stages: Gateway One – Planning Stage, Gateway Two – Construction and Gateway Three – Completion.

Gateway One (sometimes referred to as the Planning Gateway) came into force for planning applications made from August 2021. This was introduced by the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021.  All planning applications in relation to Higher-Risk Buildings must now include a satisfactory fire statement in order to achieve this gateway.

Gateway Two and Gateway Three are not currently in force but the draft Building (Higher-Risk Buildings) (England) Regulations [2022] sets out details on how they might operate.

Gateway Two is to be achieved before construction work starts and involves an application for building control approval to the Building Safety Regulator (separate from planning permission).  The application is detailed and requires a lot of information about the parties carrying out the works and the works proposed.  Work cannot start until the Regulator gives approval (regardless of whether planning permission has been granted).  If works are started before approval, then the proposed penalty is imprisonment (of up to 2 years) or an unlimited fine.  A 12 week period is proposed a for the Regulator to approve or reject these building control applications.

Gateway Three is to be achieved after the works are completion and before a Higher-Risk Building can be occupied.  It is proposed that to achieve this Gateway the principal accountable person for a Higher-Risk Building will need to register the building with the Regulator and provide detailed documents and information to the Regulator for review. Once the Regulator is satisfied a completion certificate will be provided and following this the building can be occupied.  If it is occupied beforehand, then the proposed penalty is imprisonment (maximum of 2 years) or an unlimited fine.  Again, a 12 week period is proposed a for the Regulator to approve or reject these building control applications.

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