The narrow gate: gaining design approval for higher-risk buildings

Higher-risk building projects are now subject to a new building control regime. Hywel Davies explains the approval process

A key provision of the Building Safety Act 2022 is the new procedure for obtaining design approval for work to higher-risk buildings (HRBs). Now, an ‘application for building control approval’ must be accepted by the Building Safety Regulator (BSR) before work can lawfully start. This is prompting questions about what information the BSR will require before giving approval. Its recent guidance gives very clear indications.

First, the application must contain sufficient information to show how the building will satisfy all applicable functional requirements of the Building Regulations. These requirements must be satisfied with justification for why the evidence of compliance is relevant, not a list of which parts of the Approved Documents (ADs) or other standards or guidance have been followed. 

The application must also demonstrate how construction activity will be managed, to give the BSR confidence that what was designed and approved is what will be built. It will expect to see sufficient credible evidence captured during construction to demonstrate this and to support the building completion certificate application when construction is finished.

A rigorous change control process must also be followed for any changes to the approved design on site, with major changes requiring reapproval by the BSR. Documents submitted and approved previously must be updated to reflect changes, as part of the golden thread.

Any application for building control approval must be signed by the applicant. If the application is made by a representative, on behalf of the client, the client must provide a signed statement confirming agreement to the application being made and its contents. 

A number of supporting documents will have to be supplied, as listed in the Building Regulations (Higher-Risk Building Procedures) (England) 2023. These include a competence declaration, Building Regulations compliance statement, fire and emergency file, construction control plan and change control plan, and a mandatory occurrence reporting plan. Where the building is to be built in phases and completed in stages, the application also requires a partial completion strategy.

The competence declaration must confirm that the client is satisfied that the principal designer, principal contractor and any other person appointed to the work are competent to carry out their roles. It must provide a written record of the steps the client has taken to be satisfied of their competence. The BSR will not examine conclusions, but if it later transpires that these checks are insufficient, enforcement action may follow. 

In RIBA Plan terms, Stage 4 needs completing before application for approval of full plans at Gateway 2

The Building Regulations compliance statement is intended to demonstrate how the planned building work will comply with all functional requirements of the Building Regulations, with relevant reasons for why it complies. This must be considered carefully and demonstrated before construction starts to obtain Gateway 2 approval. The statement should reference specific guidance, standards and design codes, or detail individual compliance solutions, supported by relevant design details, calculations, specification, and other pertinent information, often developed during the contractor design phase.

The BSR notes that ‘following ADs is a common means to try to ensure building work complies with Building Regulations’. But, it adds, ‘while this approach may be entirely appropriate for typical building work scenarios, it does not guarantee compliance, as the ADs are not relevant to all situations’. Dutyholders must consider how they comply with Building Regulations appropriately for specific projects. Each project must show how the functional requirements are met, and the compliance statement must give evidence of this for each requirement.

The regulator is looking for detailed evidence of compliance with the functional requirements via design solutions, not just plans or setting out drawings. It is clearly not going to accept elements of the design being assigned to contractor-designed portions, as it will be impossible to assess compliance. 

This requires a significant change of approach to designing HRBs, with detailed consideration of all aspects of compliance and detailed planning of the construction phase. In RIBA Plan terms, Stage 4 needs completing before application for approval of full plans at Gateway 2. Given the government’s acceptance of Dame Judith Hackitt’s findings, the only real surprise about Gateway 2 is that so many seem surprised by it.