Building Safety in Northern Ireland - Higher Risk Buildings and the Gateway Regime
The Building Safety Act 2022 (BSA 2022) was the UK Government’s legislative response to the Grenfell Tower fire and represented the biggest change to building safety regulation in decades. However, whilst some provisions of BSA 2022 extend beyond England, the majority do not apply in Northern Ireland.
New Legislation for Northern Ireland?
The Northern Ireland Executive has the power to legislate on building safety. Whilst no draft legislation has been published, the next Assembly election is due before May 2027 and it is anticipated that building safety reforms for Northern Ireland, drawing on BSA 2022, will be prioritised as part of the next Assembly mandate, meaning that those reforms may be in force before the end of the decade.
Whilst projects in Northern Ireland are not currently subject to the BSA 2022 regime, BSA 2022 is the benchmark for building safety reform in the UK. The anticipated reforms in Northern Ireland will draw heavily on the BSA 2022 model, meaning developers, contractors, consultants, and property owners who understand the BSA 2022 regime will be better prepared for legislative change in Northern Ireland.
This is the first in a series of articles in which the Construction team at Carson McDowell will comment on the key aspects of BSA 2022 and the possible implementation in Northern Ireland of similar provisions, so that readers are aware of the practical and commercial implications of BSA 2022 and can prepare for future local legislative change.
BSA 2022 – Higher-Risk Buildings
BSA 2022 introduced a new and more stringent regulatory regime for ‘higher-risk buildings’ (HRBs).During design and construction, a HRB is a building that:
• is at least 18 metres in height or has at least seven storeys; and
• contains at least two residential units, or is a hospital or care home.
If a project involves the construction of an HRB, it will be subject to a significantly more rigorous regulatory process than other developments.
The Building Safety Regulator
A key component of the BSA 2022 regime is the establishment of the Building Safety Regulator (BSR), operating within the Health and Safety Executive. The BSR acts as the building control authority for work on HRBs and oversees compliance with obligations under BSA 2022.
The Gateway Regime
Another of the most significant changes introduced by BSA 2022 is the "gateway" regime for HRBs, intended to ensure that building safety is considered at each stage of the design and construction of a new HRB.
Gateway one introduced new requirements into the planning system, intended to ensure that fire safety matters were considered at planning stage for schemes involving an HRB.Gateway two occurs before any construction work. For a new HRB, it requires:
1. an application for building control approval to the BSR, with the full design intention detailed;
2. the granting of building control approval for the work;
3. the fulfilment of any requirements of the building control approval to be satisfied before work is started; and
4. advance notice to the BSR of when work is to start.
Gateway two provides a “hard stop”, meaning that the construction phase cannot begin until these requirements are satisfied.
Gateway three relates to completion and readiness for occupation. It envisages another application to the BSR, this time for a completion certificate. Gateway three presents another “hard stop”, meaning that a HRB cannot be occupied until the BSR has issued a completion certificate.
Carson McDowell View
In Northern Ireland, building control is administered by local councils rather than a national regulator. Creating an equivalent to the BSR, to act as the building control authority for work on HRBs in Northern Ireland, would represent a significant change to Northern Ireland’s building control regime. Northern Ireland has significantly fewer buildings over 18m in height than England. It remains to be seen whether, in that context, it will be proportionate to establish a new regulator.
Under the BSA 2022 regime, a failure to plan for and comply with the requirements of the gateway regime can result in delays and increased costs. Those and the other additional regulatory requirements for projects involving HRBs are likely to influence design decisions and see developers modifying schemes to stay below HRB thresholds. Northern Ireland is likely to see its own bespoke definition of a ‘higher-risk building’, which will influence those decisions.
For more information, please contact John Dugdale or another member of the Construction Team.
*This information is for guidance purposes only and does not constitute, nor should be regarded as, a substitute for taking legal advice that is tailored to your circumstances.
