High-rise residential development has virtually ground to a halt since the Building Safety Regulator took on full powers. In the second instalment of a two-part series, Charlotte Banks explores whether change is on the horizon
The roll-out of the gateway two system has been dogged by delays and poor clarity. But there are signs the situation may soon improve. The BSR has made changes since those difficult early days last spring. It started recruiting more staff earlier than it had initially agreed with the Treasury. As of this January, it employs 52 case officers and five managers, up from eight case officers the previous February. White says more will have come in by May, while those that joined late last year are being trained. Central government also chipped in £2m in February, which was spent mostly on IT improvements and external experts to review the regulator’s procedures. The BSR also used the money to bring in external building control experts to help support and train its own staff.
“In other sectors, the industry gets together to produce what looks like good practice, rather than waiting to be told what it looks like by the regulator”
Dame Judith Hackitt
White says the regulator is broadly meeting its statutory 18-week targets. Gallafent says that’s not what fellow industry figures are reporting, although she does see encouraging signs of improvement. “The stuff that we’re submitting more recently is getting validated more quickly,” she says. “We’re getting questions asked about it more quickly. The wheels are turning now a bit faster than they were.” Other tweaks to the system are being explored. Many of the industry figures CN spoke to suggest it would be helpful if the BSR publicised successful applications, so the industry can learn from others’ best practice. “If you’re doing a planning application, there’s lots of examples of what a design and access statement should look like, and they give you lots of guidance as to what it’s for and how it can be received, and what you need to include,” says Nicholson. Is the BSR open to providing example answers? “I would look at it the other way round,” says White. “Dear industry, if you’ve got concerns, why don’t you share what you’re doing with each other or explain how you’ve got your application through? [We are] happy to be part of it, but I think this is one industry needs to take on.”
Hackitt agrees: “In other sectors, the industry gets together to produce what looks like good practice, rather than waiting to be told what it looks like by the regulator. That’s the bit I haven’t seen.”
David Frise, chief executive of the Building Engineering Services Association, counters that the industry is already doing this. “We, along with other organisations, have done a lot of work in setting up what we think would help contractors comply with the BSA,” he says. “But the BSR won’t tell us if it’s the kind of thing it wants.”
Another suggestion is that the BSR should offer some kind of pre-application meeting to ease miscommunication. Nicholson proposes a method similar to the one used within the planning system: the meeting would be paid for by the applicant, and used to discuss project-specific points of building regulations interpretation. “Developers and builders wouldn’t do millions of pounds of design investments into a planning application without having a planning consultant or paying for a pre-app,” he says. “We’re finding that gateway two applications are becoming as important as a planning application.”
Such a function may be on the table. Hackitt says the idea of a pre-application meeting would not necessarily betray the spirit of the regulator, although she cautions that a balance has to be struck between giving guidance without telling applicants what to do. “We’ve got to get this shift in ownership and responsibility,” she says. White has a similar view. “I’m not convinced about the idea of pre-application advice, per se, but I wouldn’t be averse to some sort of pre[1]application engagement.” Of course, offering such meetings would put further pressure on staff, particularly building control expertise.
The BSR is already looking at ways to use talent more efficiently: it is going to private sector building inspectors for support with lower-risk projects, to expedite them through the system. White also mentions the possibility of temporarily bringing inspectors in-house. “If there were a particular development where we know there’s going to be, say, 120 applications in one place,” he says, “would it not be sensible to try one place,” he says, “would it not be sensible to try and have an MDT that doesn’t deal with each one of those, but with all 120? We might bring those people in-house for a year or two, depending on what the nature of that work is.”
Although the BSR is playing around with different structures for MDTs, White adds that it wants to work with local authority building control and fire rescue services as much as possible, because they will be responsible for regulating the building once it is complete. Alan Dargue, principal building safety consultant at Safer Sphere, points out another issue with fishing for staff outside the public sector building control pool. “How are people in the private sector balancing their clients and looking after the BSR at the same time? That’s where it falls down. If the clients shout louder, they’re obviously going to look after their client first,” he says.
These tweaks also might not tackle the core problem – there simply aren’t enough qualified people in the industry, especially in building control. The only people authorised to assess plans for HRBs are those that registered last year as a class 3H. There are around 600 inspectors registered at a class 3 in England, according to White. Out of these 600, not all of them work for a local authority, and even fewer are qualified to work on HRBs. The BSR did not share the number registered at class 3H in time for publication. These professionals also have hefty workloads with their own employers, aside from sitting on MDTs.
This is where one post-Grenfell building safety reform – in this case, the licensing of building control professionals – has rubbed up uncomfortably against another. Many experienced building control professionals decided to leave the profession last year rather than go through the effort of qualifying under the new register, and have instead picked up work helping private clients through the gateway system. Dargue, who spent decades in both local authority and private building control, is one of them. He became a building safety consultant at Safer Sphere in late 2023, and led the gateway two process on the successful Dyecoats application. “The ironic thing is, if I’d stayed where I was, I would probably have been on the MDTs,” he says.
It’s not just the hassle of qualification that has driven experienced people away – several of the people CN spoke to point out wide disparities in public sector and private sector salaries for experienced building control professionals.
Furthermore, the building control staff that the BSR does have are due to take on even more tasks as those buildings that have passed through gateway two reach new building safety checkpoints. First, any changes to the construction plan must be submitted to the BSR before they are carried out. These fall under two categories: notifiable and major. If the BSR deems the change major, work must stop until it approves the new plans. The whole project goes back into the gateway system, and, in theory, will take up to six weeks to approve.
The BSR is also responsible for regularly inspecting projects under construction. “I think we’re going to have to take a really proactive stance around record-keeping because I’m not overly confident this inspection regime is going to happen in a hurry,” says the housing association figure.
The final hurdle
All this leads up to the next hurdle: gateway three. Gateway three is another hard stop at the end of construction: the BSR must approve newly built buildings before they can be occupied. Only a few buildings have yet reached this checkpoint, but concerning signals are already emerging. White says the BSR recently looked at a gateway three application for an unfinished building with serious deficiencies in the fire protection system.
“It just illustrated the challenge that we’ve got in relation to regulating,” he says. “If you think that building was ready to put people in, you’re living on another planet. And that’s a building that’s been put up since Grenfell.”
Delays or rejections at the gateway three stage are possibly more catastrophic, as they affect when everyone gets paid. Clients are likely to withhold any outstanding payments or retentions until the project passes gateway three, meaning delays will create additional costs for contractors, which they would likely seek to recover from the supply chain, explains Rudi Klein, barrister and former chief executive of the Specialist Engineering Contractors Group. “Given that the retention often represents the margin on a job, many subcontractors could face severe financial hardship, especially at a time when work is in short supply.”
The regulator is working through these hurdles at the same moment its entire structure is up in the air. In February, the government accepted the Grenfell Tower Inquiry’s phase two report recommendation to create a single construction regulator working across the whole industry, subsuming the BSR’s functions. While many have publicly expressed support for the idea in principle, some worry that it could divert the attention of policymakers away from the problem at hand.
“Both the BSR and the construction products regulator need time to establish and iron out the teething issues that are inevitable when you set up new regulators,” says Hackitt. “But the time will come when it is right to bring them together.” This is unlikely to be before 2028, the timeline the government gave itself to start implementing the reforms recommended by the inquiry. It has pledged to spend the next year ironing out kinks in the building safety reforms that have already been implemented, before spending two years fleshing out its proposals and getting legislation through parliament.
In the meantime, even more buildings may face gateway two in the near future as the government rethinks the definition of an HRB, another inquiry recommendation. The government has pledged to set out plans for an ongoing review of the definition in summer 2025, but before then there are clues as to what such a review might consider. The original consultation on the definition considered care homes and hospitals, while the Royal Institute of British Architects has called for “temporary leisure establishments and assembly buildings” – which may include hotels, schools and stadiums – to fall under the BSR’s remit.
Amid all the uncertainty and pressure, it might be easy to forget the opportunity the new system brings to radically improve some of the worst parts of the construction industry.
“If the BSR becomes fit for purpose, there is a real opportunity to transform the way clients and contractors work together that is less focused on competitive tension and risk-dumping and more on collaboration,” Gallafent says. “This will ultimately result in buildings that are much more likely to be completed on time, on budget, and are – obviously – safer.”