Chapter 7
Gateways – Building control approval: New HRBs & Existing HRBs
This chapter – at a glance
- Part 2, Chapters 1 (New HRBs) and 2 (Existing HRBs) of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, referred to in this chapter as the Regulations
- New HRBs (Regulations 3 – 9)
- The application for approval
- BSR’s approval
- Other notices and commencement
- Existing HRBs (Regulations 10 – 17)
- Emergency works
- The application for approval
- BSR’s approval
- Other notices and commencement
Introduction and Transitional Provisions
The Regulations set out the procedures for the BSR becoming the building control authority for HRBs and the gateway processes (Gateways) that will apply to the design and construction of new HRBs and the refurbishment work to existing HRBs.
In some cases, the prior building control regime (and requirements) will continue to apply, but in all other cases a more rigorous and structured system of Gateways will be introduced, marked by much clearer lines of responsibility, and more onerous obligations in the information to be provided, and approvals sought.
Broadly speaking
- Gateway 2 requires initial approval from the BSR, before works can start, similar to the current ‘deposit of full plans’ stage under the Building Regulations;
- Gateway 3 provides for completion certificates, involving an assessment of whether the building work complies with relevant requirements of the Building Regulations, before it can be handed over for occupation; and
- in between these Gateways there is a much more prescriptive and rigorous regime for gathering relevant information and documenting changes.
The Regulations come into force on 1 October 2023, subject to the detailed transitional provisions set out in Schedule 3 of the Regulations.
Helpful Pointers
- The Regulations include at the end a Schedule of Documents (Schedule 1) which sets out exactly what is required to be included in various documents created and referred to within these Regulations.
- Exempt Work has a fuller explanation at Schedule 2.
- If you need to review the Regulations in more detail, the explanatory notes issued alongside the regulations are useful.
Part 2 – Building control approval: New HRBs & Existing HRBs
The newly introduced procedures contain finer detail in relation to works to new HRBs and existing HRBs. For new HRBs, an application will need to be submitted and approved by the BSR before the commencement of any works. This is known as Gateway 2 and replaces the current stage (‘deposit of full plans’) under the Building Regulations. Regulations 3 – 9 sets out the procedures which must be followed.
Building work in existing buildings will follow different building control routes depending on the work that is being carried out. A feature that should not be overlooked, is the importance of following the new building control procedure for existing buildings. The process for building work in existing buildings should be just as thorough as the process for creating new HRBs. This is to ensure safety for those that live in or use these buildings. Regulations 10 – 17 sets out the procedures which must be followed.
New HRBs (Regulations 3 – 9)
The application for approval
Before any works or stage of works to an HRB are commenced, the client in relation to those works must:
- Submit an application to the BSR;
- Receive approval of such application from the BSR;
- Fulfil any BSR requirements before works/stage of works are commenced; and
- Before works/stage works commence, notify the BSR of the works commencement date.
The requirements of a building control approval application (which must be in writing) are set out at Regulation 4 and include the following:
- Contact details of the client, principal contractor, and principal designer.
- Statements confirming the application is made under Regulation 4.
- When the proposed work is regarded as commenced in accordance with regulation 46A of the Building Regulations.
- A statement from the client confirming that the information submitted is correct (where the application is made on behalf of someone other than the client).
- Details of any existing building, insofar as the works relate to an existing building.
- A description of the proposed work, including the height, number of storeys, proposed use of each storey, number of residential rooms and commercial units, and drainage provisions for the building.
- An outline of when, during the build phase, the client expects to have met the legal definition and requirement of ‘commencement of work’ as defined under 46A of the Building Regulations.
In addition, Regulation 4(2) requires the submission of plans which detail the size of the building together with site boundary information such as the building’s position in relation to other properties. It also lists the prescribed documents which must accompany the application. Where the application relates to the first stage of work, there are requirements for a statement detailing the work to be undertaken in the first stage, and all the subsequent stages.
Building Safety Regulator’s approval
Regulations 5, 6 & 7 identify the BSR’s obligations and the timescales for approving applications. The three phases of approval include validity, consultation, and decisions. In simple terms, an application is valid if it complies with the requirements of Regulation 4 and the BSR must confirm the validity of the application within 12 weeks of receipt. This period can be extended by mutual agreement. Where an application is deemed invalid by the BSR, it must notify the applicant and provide a reason for its invalidity.
The consultation phase is set out at Regulation 6 and specifies the BSR’s consultation process. This is modelled on the statutory consultation process requirements in the Building Regulation and applies them to HRBs. The BSR will consult with (1) the relevant enforcing authorities for the RRFO which, for the higher-risk regime, is the fire and rescue authority for the area in which the proposed HRB is to be constructed; and (2) the sewerage undertaker.
The decision phase specifies the steps to be taken by the BSR in determining whether an application should be approved or not. An application must be approved unless:
- It does not comply with the requirements of Regulation 4.
- It does not provide sufficient detail to show whether relevant Building Regulations requirements would be contravened.
- It shows that the proposed work would contravene a relevant Building Regulation requirement.
- It shows that the strategies, policies, and procedures in place are insufficient to ensure compliance with relevant requirements.
In circumstances where one or more of the reasons listed above applies, the BSR has two options. (1) reject the application; or (2) approve (with written consent of the applicant) 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 BSR.
The BSR must determine the outcome of an application within 12 weeks in accordance with Regulation 5 and notify the applicant accordingly. Where an application is rejected, reasons must be provided by the BSR. It is important to note that where approval is obtained, but such approval is subject to requirements, those requirements may specify that works cannot begin until those requirements have been satisfied. It is for the client to ensure no works are commenced in the absence of full approval.
Other notices and commencement
Regulation 8 gives the BSR authority (by written notice) to require the client to notify them, within a specified period, when work, or a stage of work, has reached a specified point and/or not to cover up specified works within a specified period.
Regulation 9 requires the client to give notice to the BSR of its intention to commence works. Such notice must be provided at least 5 working days before the commencement of works. Further notice must also be provided no more than 5 working days after the HRB work or stage has commenced.
The new notices under Regulation 9(3) enables the BSR to monitor whether work is to be regarded as commenced and, if the BSR is not satisfied the work is to be regarded as commenced, it will issue a “rejection notice” with reasons for such rejection. The client may appeal to the First-tier Tribunal against the decision of the BSR to reject the notice provided the appeal is made within 21 days of receipt.
The definition of “commenced” has previously only appeared in guidance, and therefore, regulation 46A of the Building Regulations provides clarity on how the definition should be interpreted by dutyholders. The definition of “commenced” requires the client to demonstrate that a sufficient amount of work has been carried out to retain their building control approval three years after the application for approval was given.
Existing HRBs (Regulations 10 – 17)
Emergency works
Regulation 10 specifies that where emergency repairs are required (and therefore it is not practicable to gain building control approval in accordance with Regulation 11 (see below); the client must give notice to that effect to the BSR. The notice must describe the reasons for the urgency as soon as practicable after the works have started. The client must also submit a regularisation certificate application as soon as possible once it has been completed. Regularisation certificate applications are described by Regulation 47 of this instrument. Please see Chapter 11.
For clarity, ‘emergency repairs’ are defined by the Regulation as
“repairs to a building which are necessary to be carried out as a matter of urgency due to the risk to health, safety or welfare of persons in or about the building”.
The application for approval
Before any work to an existing HRB can commence, the client must:
- submit an application for building control approval in relation to the work to the BSR in accordance with Regulation 12;
- be granted building control approval for the work;
- fulfil those requirements, if any, which in accordance with the building control approval must be fulfilled before the work is started;
- notify the BSR of the date on which the work is to start (in accordance with Regulation 17(2) (see below).
The requirements set above do not apply to work to existing HRB which consists only of scheme work (as set out in Schedule 3 to the Building Regulations) and exempt work (as set out in Schedule 2 to The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023) and; work to which Regulation 10 (notification of emergency repairs to existing HRB) applies.
The requirements of a building control approval application for existing HRBs largely follows those set out at Regulation 4. However, there is a distinction made between ‘category A works’ and ‘category B works’. Category A works are defined as:
- work which increases or decreases the external height or width of the HRB;
- work which changes the number of storeys the HRB has (including adding or removing a mezzanine or gallery floor);
- work which changes the number of flats or residential rooms contained in the HRB;
- work which changes the number of, or width of, the staircases in an HRB or which changes the number of, or width of, any other escape route within the building;
- work to the external wall of an HRB excluding work or materials of a description specified in regulation 7(3) of the Building Regulations;
- work which changes the internal layout of an HRB;
- work which affects the passive fire safety measures in the HRB;
- work which affects the active fire safety measures in an HRB;
- work which affects the common parts of an HRB (including the external wall) not otherwise falling within category A;
Category B works are defined as anything that falls outside of the definition of category A.
With regard to category A works, the prescribed documents required as part of the application mirror those required for the design and construction of new buildings. However, as part of an application for category B works, the Regulations allow the applicant to decide whether any of the prescribed documents required for category A work should be submitted for the category B work.
It is also important to note that in respect of category B works, where Part B of Schedule 1 to the Building Regulations imposes a requirement in relation to the work, the application must include information setting out the fire safety design principles, concepts and standards applied to the development (“fire safety compliance information”).
The BSR’s approval
As with the approval process for new HRBs, Regulation 13, 14 & 15 identifies the BSR’s obligations and the timescales for approving applications. Again, the three phases of approval include validity, consultation, and decisions however, the time period for approval is 8 weeks rather than 12 weeks.
The consultation process and decision process set at Regulation 14 & 15 is largely the same as the consultation process as set out in Regulation 6 & 7 however, there are slight distinctions between category A work and category B work.
Other notices and commencement
In accordance with Regulation 16, the BSR may, require a client to notify them when a specific part or section of work has been reached. Further, notices may also require the client not to cover up any specified portion of work for a specified period.
There are also equivalent provisions at Regulation 17 to those at Regulation 9 with regard to commencement notices when the works starts and subsequently when the work is deemed to have commenced.
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