As featured in the May 2025 issue of Fire & Risk Management magazine, published by the Fire Protection Association

Introduction and overview

The Gateway Regime for Higher-Risk Buildings (“HRBs”) introduced under secondary legislation to the Building Safety Act 2022.^[1]Building Safety Act 2022, Chapter 30. (“BSA”) has been cited as causing significant delays and increased uncertainty for construction projects involving high-rise residential buildings. In this article, Paul Jolly considers the key factors that have contributed to these developments, which have led to a significant number of HRB applications being rejected by the Building Safety Regulator.  

Driving cultural and behavioural change

The BSA defines an HRB as a building which (a) is at least 18 metres in height or has at least seven storeys; and (b) contains at least two residential units.^[2]Building Safety Act 2022, Section 65. These buildings are now subject to stricter controls introduced under the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023,^[3]The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, S.I. No. 909. which place additional responsibilities on parties involved in the design, construction and management of HRBs. The approvals regime is overseen by the Building Safety Regulator (“BSR”), the new Building Control Body of the Health & Safety Executive (“HSE”) created under the BSA.

The principal aim of the HRB reforms was to drive cultural and behavioural change, in response to findings first published under Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety (the “Hackitt Review”) which concluded the following for high-rise residential buildings:

“There is widespread deviation from what is originally designed to what is actually built, without clear and consistent requirements to seek authorisation or review, or to document changes made.”^[4]Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Interim Report, section 1.24.

Design and Build procurement came under particular criticism in the Hackitt Review which was cited as being problematic in facilitating what was termed as “evolutionary design” rather than a client appointing “separate designers and contractors.”^[5]Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Final Report, section 2.1. This drive for a clearer distinction between the processes of design and construction has been enacted in the HRB legislation, with three defined ‘Gateways’ acting as ‘hard stops’ in the project programme:  

Gateway one – Land use matters relating to fire safety must be considered by the HSE during the HRB planning application stage;  

Gateway two – Building control approval must be obtained from the BSR for the HRB design prior to commencing construction;

Gateway three – Building control approval must be obtained from the BSR for the HRB construction prior to registration and occupation.

Statutory determination periods

In addition to the long established statutory determination periods for planning applications^[6]Article 34 of the Town and Country Planning (Development Management Procedure (England) Order 2015 (as amended) confirms determination periods of 13 weeks for applications for major development, 10 … Continue reading which coincides with Gateway one, the HRB legislation has introduced additional statutory review periods for the BSR to determine Gateway two applications. The periods set out in the legislation are 12 weeks to determine new-build projects and eight weeks for refurbished projects, including existing developments undergoing remediation.

But eighteen months on from the introduction of the HRB Gateway regime, the BSR is still working to try and achieve these timeframes. When responding to a parliamentary question raised last September concerning the status of HRB approvals, the Ministry of Housing, Communities and Local Government (“MHCLG”) confirmed 16 of the 668 HRB applications received up to 30 June 2024 had been determined within the statutory periods (representing only 2%), whilst 270 of the applications (40%) had been refused.^[7]UK Parliament, Buildings: Safety – Question for Ministry of Housing, Communities and Local Government, tabled 5 September 2024 LINK.

This backlog shows limited signs of improvement. In February 2025, the BSR confirmed Gateway two approvals were taking on average 22 weeks to process, with rejections typically taking 17 weeks. But developers have reported some response times as being significantly longer, with some Gateway two applications taking up to 40 weeks to determine.

So, what is causing the delay in HRB approvals, and why are so many applications being rejected? 

BSR capability and outsourcing 

A primary objective of the BSA was to “raise the bar” of competence across the industry. The HRB Gateway two application requires a ‘competence declaration’ to be provided by the client to demonstrate the project team has the necessary skills, knowledge, experience and behaviours to undertake the HRB work. It therefore follows that the body responsible for approving that work, must effectively ‘mirror the project team’ in also possessing the requisite level of competence to review and approve the HRB design and construction.

Despite engaging in a significant recruitment drive since 2023,^[8]Inside Housing article published 16 June 2023 reported the BSR was targeting the recruitment of  more than 160 staff members to increase its workforce by 60%.  the BSR has confirmed it does not have the resources or technical expertise to manage the volume of HRB applications it is receiving in-house. It has been widely reported that the regulator has struggled to recruit technical staff and is under resourced.^[9]Graham Watts, Chief Executive of the Construction Industry Council has been quoted as stating “..the regulator has taken an awful long time to set up and had struggled to recruit people. It has … Continue reading The HSE has faced more than a decade of financial cuts, which saw Government contributions reduced by more than £100 million between 2010 and 2019. Although contributions have increased in recent years to reflect its expanded remit under the BSA, the chair of the HSE informed MPs this  February that the regulator remains “under considerable financial pressure.”^[10]HSE chair Sarah Newton oral evidence to Q26 from Members of Parliament during a Work and Pensions Select Committee meeting held on 5 February 2025 LINK.

The intended solution to the BSR’s capacity problem was to outsource HRB reviews to multi-disciplinary teams assembled from the private sector and local authority building control departments. But when reflecting on the first 12 months of the HRB regime, the HSE’s deputy director of building safety admitted their assumptions and modelling “had not survived first contact with reality.”^[11] Inside Housing article published 17 October 2024, reporting on the HSE’s presentation to the Regulation and Governance Conference LINK. The regulatory changes introduced after the Grenfell Tower disaster has seen an unprecedented rise in demand for competent fire engineers, structural engineers and building inspectors from across the industry. This presents significant challenges to the BSR’s outsourcing model which relies on the regulator being able to quickly assemble multidisciplinary teams of external consultants dedicated to each HRB application, who will in turn be able to review and provide coordinated responses to the BSR all within the statutory determination periods.   

Even after a developer has managed to secure approval at Gateway two, there are further approval periods within the HRB change control procedures that may present further challenges. Any changes made to the design after Gateway two must be managed and assessed in accordance with the ‘change control plan’ to guard against so called “value engineering” changes which the Hackitt Review highlighted as often resulting in “uncontrolled, undocumented and poorly designed changes being made to the original design intent”. The changes may be categorised as: (i) a “recordable change”; (ii) a “notifiable change”, where the BSR must be notified and have 10 working days to respond; or (iii) a “major change” which must be submitted to the BSR for approval before it can be made, with the regulator having six weeks (or longer if agreed) to determine the application. There may again be difficulties with the BSR assembling teams to respond to major change applications within the stated periods, and potential issues with continuity if the original consultants who approved the design at Gateway two are not available.

The BSR’s outsourcing model is likely to be placed under further strain once the current tranche of HRB projects in the approvals pipeline approach completion. Gateway three will require the completed construction to be approved by the BSR, which is likely to require a dedicated team of competent multi-disciplinary assessors to inspect all aspects of the works on site that are subject to Building Regulations approval. Unless there are fundamental changes in the HSE’s resourcing or the availability of technical expertise within the market, we are likely to see a further bottleneck of delays at Gateway three in the coming months.

Demonstrating compliance

Another significant factor behind the low rate of HRB approvals is what the BSR describes as the high volume of “problematic applications” which fail to adequately address the Gateway two submission requirements. The BSR has reinforced the position that compliance with the Building Regulations should be considered holistically as an “outcomes-based approach” rather than a simple tick-box exercise they are regularly seeing from design teams.

The variable quality of Gateway two submissions can be associated with the onus now being on applicants to demonstrate compliance, rather than the regulator setting the expectations. This cultural shift has extended to the BSR focusing on a primarily regulatory role, rather than providing pre-application advice on developments prior to Gateway two submissions, in line with the “outcomes-based” model set out in the Hackitt Review:

“The aim of this review is to move away from telling those responsible for [HRBs] ‘what to do’ and place them in a position of making intelligent decisions about the layers of protection required to make their particular building safe…An outcomes-based model relies more on robust competence regimes with appropriate levels of assurance. This is, because those undertaking the work, and those appraising it, will need to have sufficient levels of skills, knowledge and expertise to make appropriate judgement calls.”^[12]Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Final Report, sections 1.28 & 1.30.

This follows the direction in recent years for the HSE to withdraw from publishing Approved Codes of Practice (“ACoP”) that offer practical advice to dutyholders on how to fulfil their statutory obligations in favour of more simplified industry guidance. Dame Judith Hackitt followed this trend when she was chair of the HSE between 2007 to 2016 in overseeing the reforms to the Construction (Design and Management) Regulations (“CDM”) when the ACoP accompanying CDM 2007 was not replaced under CDM 2015.

The BSA’s reliance on increased industry competence makes it clear it is now down to dutyholders undertaking HRB work to make “appropriate judgement calls” when completing their HRB submissions. But without comprehensive guidance in place and the move from the BSR away from providing pre-application advice, there remains increasing uncertainty over whether one designer’s “appropriate judgement calls” will be aligned with those of another designer engaged from the private sector by the BSR to appraise them. On 27 March 2025, the HSE published guidance on the information that must be submitted to the BSR when applying to construct or carry out building work on an HRB.^[13]HSE Guidance: Preparing information for a building control approval application, 27 March 2025 – LINK. Although the online guidance essentially summarises the statutory requirements previously set out in the HRB legislation, it represents a positive step from the regulator in providing further clarity on their expectations from applicants.

Summary and conclusion

It is hoped the recent guidance published by the HSE will go some way to clarifying the expectations for Gateway two in order to improve the quality of submissions, and in turn, improve the BSR’s response times and approval ratings. It remains to be seen whether the concerns over the BSR’s capacity and resourcing will present further delays under the HRB change control regime, particularly on remedial projects involving existing buildings where the design scope may not be fully realised until the commencement of strip-out works on site. The BSR’s outsourcing model is likely to present more acute challenges at Gateway three, where the BSR will be required to inspect and approve the HRB works on site at completion, prior to registration and occupation. Complex buildings are likely to require inspections spanning specialisms from across the BSR’s multi-disciplinary teams, which will require a dedicated resource and continuity from Gateway two to avoid repeating further delays at handover.

The increased uncertainty and programme risks presented by the HRB gateway regime, coupled with the financial strain placed on funding and procurement models, have already seen some developers and contractors start to reconsider their property portfolios. This is likely to place increased pressure on the Government’s ambitious target to deliver 1.5 million new homes before the end of this Parliament. The drive to see housebuilding rise to “its highest level in over 40 years”¹⁴ has coincided with the new BSA regime which represents the most significant overhaul in building regulations since the Building Act 1984. Without significant changes being introduced, the legislation will likely push the industry towards a two-tier system; those who are prepared to undertake HRB work, and those who are not.     

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About the author

Paul Jolly is a RIBA chartered architect and expert witness with over 25 years of industry experience. He is a Principal in the Forensic Technical Services team at HKA, a leading global consultancy specialising in risk mitigation, dispute resolution, and litigation support.