Since October 2023, the Building Safety Regulator (“BSR”), established under the Building Safety Act 2022 and part of the Health and Safety Executive, became the sole Building Control body for Higher-Risk Buildings (“HRB”) and is the body responsible for approving detailed designs under the new three-stage Gateway process (see Building Safety: New building safety regime is now live). 

The approvals process can be lengthy due to the rigorous safety assessments required but reported delays are causing concern to an industry still adapting to the new regulatory framework.   In August, RICS noted in its Important Update: Building Safety Regulator Pauses Work on 50 Higher-Risk Projects that the Construction Leadership Council and the BSR held talks regarding backlog and delays in the approvals process. The BSA referred to a higher than expected number of HRB applications. Incomplete or non-compliant submissions were also cited as reasons for delay. 

In October, an article from Inside Housing highlighted the industry’s growing frustration with the BSR and the Gateway process, with bottlenecks putting projects under pressure. The article referenced a Freedom of Information Act (“FOI”) request submitted by the Fire Industry Association which showed that:

• From 1 October 2023 to 16 September 2024, the BSR received 1,018 Gateway Two applications;
• 146 applications were signed off as compliant (with the result that construction could start on site);
• 25 applications were rejected; and
• 847 applications were still pending a decision.

With an approval rate of 14% since its inception, the industry is understandably worried about the impact the BSR approvals process will have on its current and future projects. 

Strategies to Address Delays

Delays in the BSR approvals process can significantly impact construction projects. Strategies that parties can use to address these delays include:

• understanding the BSA requirements and early engagement with the BSR: all parties need to be familiar with the BSA requirements and the roles they play in relation to ensuring compliance with this. Engaging with the BSR early in the project planning stages can help in understanding its requirements and timelines. This may also help identify potential issues with submissions and allow for proactive measures to address these issues, reducing the likelihood of delays; 
• delay clauses: for contracts which have yet to be entered into, the parties should consider their proposed delay clauses which outline the responsibilities of each party and the consequences of those delays. This may mean delays beyond the control of either party allow for extensions of time (“EoT”) but this will be fact specific depending on the risk appetite of the contracting parties and the nature of the project; and
• EoT requests: ensuring the contract includes a clear procedure for addressing delays.  This will include submitting a written application with supporting documents detailing the cause of the delay, its expected duration, and proposed mitigation measures. Ensuring that this process is followed once in contract and maintaining adequate records will be key to mitigating risk caused to all parties by delay in the approvals process. 

The BSR’s mandate is extensive and its ability to deliver its key functions depends on several factors, including the industry’s readiness to adapt to the new regime, as well as the BSR’s capacity to deliver under the Gateway approval process. For detailed advice on risk mitigation measures to facilitate compliance with, and manage the delays associated with, the Gateway approvals process please contact Richard Adams or Nia Stewart.