Hot on the heels from Dame Judith Hackitt’s appearance before the House of Lords Select Committee in its inquiry into the Building Safety Regulator (BSR), the Construction Leadership Council (CLC) has published new guidance in relation to Gateway 2 applications. 

Here’s a dive into certain key elements in the guidance (relating to sufficiency of design information, approvals with requirements and staged applications) and our thoughts on how far this guidance moves the dial in assisting those making Gateway 2 applications. 

In addition to various other supplemental documents, the guidance includes:

• a useful new flowchart for Gateway 2 applications identifying those stages at which CLC’s own guidance and that of Build UK can be referred to (see comments below regarding Build UK guidance); and 
• what looks to be a very helpful application information schedule. This schedule signposts the baseline detail required as part the Gateway 2 application, identifying specific packages of design that will need to be submitted with the application. It is likely to be an important management tool in ensuring applications are comprehensive.

The CLC guidance continues the trend of endorsement of specific Build UK guidance and explains that the CLC guidance should be read in conjunction with the Build UK publication “Gateway Two – Validation of Applications for Building Control Approval”. Those looking to make Gateway 2 applications would be wise to also consult Build UK guidance (they have a Gateway 2 microsite), whilst being mindful that Build UK and the CLC are not connected and the CLC guidance does not cross-refer to all Build UK guidance. 

Sufficient level of design

The CLC guidance regarding sufficiency of design at Gateway 2 continues to be high level, based around the need to evidence compliance with the functional requirements of building regulations. An application can seek either:

• “Approval - Provision of sufficient design of the building to evidence compliance with all applicable functional requirements of the Building Regulations; or where appropriate
• Approval with Requirements - Provision of sufficient design to evidence compliance that the building can and will meet with all applicable functional requirements of the Building Regulations even though certain aspects of the design detail remain outstanding at that time and will be submitted later in accordance with an agreed plan.”

The main additional gloss the CLC guidance adds is that “design sufficiency needs to be taken to a point where performance to the requirements of the functional requirements of the Building Regulations can be confidently confirmed without having to have a particular product specified or absolute final detailed drawings/documents provided.” This may ease some concerns about the level of material specification and design required, but how this is interpreted by the BSR remains to be seen. The Build UK guidance endorsed by the CLC guidance focuses on the granularity expected in Gateway 2 applications, stating that Building Regulations Compliance Statements (required as part of a Gateway 2 application) should:

• “Identify every single element of the works that needs to demonstrate compliance with each part of the Building Regulations;
• Clarify which code or standard will be used to demonstrate compliance, with an explanation of why it is the most appropriate; and
• Justify how the functional requirements have been met with clear and comprehensible narrative referring to suitably labelled plans and drawings.”

The main take-away on sufficiency of design remains that applicants have to show how functional requirements have been met for all elements of the works. Whilst references to the application information schedule and the Build UK guidance above should help signpost the scope of required submissions, there will remain uncertainty within the industry around the level of detail required. We can expect sufficiency of design to remain an area where industry continues to clamour for further guidance, but may not find this forthcoming from Government or the CLC. The industry may therefore continue to learn from trial and error. 

Building Control Approval with requirements

Approval with requirements is a potential route to a Gateway 2 approval where either:

• there is a minor error or omission in the application, which the BSR is comfortable can be dealt with by agreement with the BSR following the grant of the Gateway 2 approval; or
• the applicant makes a clear and comprehensive submission showing that the building will comply with building regulations, accompanied by a plan setting out how and when further design will be submitted to the BSR evidencing compliance of that further design with the functional requirements of building regulations. That plan will need to be approved by the BSR as part of the Gateway 2 approval. 

The CLC guidance emphasises that the approval with requirements route is available either where: 1) the error or omission is minor; or 2) the application is made on the express basis that not all design/compliance can be evidenced at the point of application, but the BSR accepts a roadmap and commitment to demonstrate compliance post-Gateway 2. The key question remains, how much detail needs to go into the base Gateway 2 submission if an approval with requirements route is to be followed? Alongside all other required documents to be submitted as part of the Gateway 2 application, the CLC guidance explains that this application must include:

“The Building Plans (and other documents) which must demonstrate that the performance levels required by both the prescriptive (e.g. Building Regulation 7(2)) and functional/relevant requirements (e.g. the Building Regulations Schedule 1) can and will be met. It is not enough to simply state “We will meet the Regulations”.”

The supporting documents accompanying the guidance also suggest that approval with requirements should only be used on a planned basis where it is not reasonably practicable to provide all relevant details evidencing compliance with functional requirements in the original Gateway 2 application. It is not clear at this stage whether progressive design and procurement will be accepted as justification for going down this route. It would seem sensible to seek early guidance from the BSR if you are considering proceeding in this way, in order to ensure expectations are understood.

Approval with requirements is already embedded in the Building (Higher-Risk Buildings Procedures) (England) Regulations (the Procedures Regulations), so this does not represent a relaxation of existing rules. The emphasis on this route in the CLC guidance suggests however that there may be more scope to pursue approval with requirements than had previously been expected.

Staged applications, including applications for multi-building developments

Whilst the CLC guidance includes a section on staged applications for a single building or for multi-building developments, it gives limited guidance about how complex projects are likely to be approached by the BSR (save that each staged application is to be treated as if it were an application for a different building). The guidance encourages a proactive approach from developers, early engagement with the BSR and the submission of an application strategy to the BSR well in advance of the Gateway 2 application being made. The Procedures Regulations already cater for staged applications, so the only real change here is encouraging early engagement with the BSR (which the industry would welcome).