Gateway 3 approval: the beginning of the end – or the end of the beginning?

Imagine the scenario. You’re a developer delivering high‑rise homes into a market crying out for them. You’ve navigated planning, balanced stakeholder concerns with viability, secured funding and paid heavily for the work needed to satisfy the Building Safety Regulator (BSR) so you can clear Gateway 2 and draw down funds. You’ve agreed a contract sum – painful, but necessary. Then Gateway 3 arrives, approvals stall and the finish line becomes another starting gun.

The vignette is simplified, but the tension is real. Projects that should be moving into occupation are stuck because Gateway 3 is slower and less predictable than intended. That is not a mere inconvenience; it threatens delivery, cash flow and confidence in a regime that promised clarity after the tragedies that shaped it.

Our freedom of information request last year showed Gateway 2 decisions averaging 25 weeks against a statutory eight to 12. Government data later hinted at improvement, particularly where the innovation unit is involved, though transparency remains contested. The more immediate reality could be that the bottleneck is sliding from Gateway 2 to Gateway 3. While Gateway 3 is not exhibiting the same systemic dysfunction that characterised early Gateway 2 decision‑making, it remains slower and less predictable than the statutory framework suggests.

Gateway 3’s statutory review period is eight weeks, but according to our latest FOI, of the 158 applications submitted last year, 55 took more than three months to determine. Forty four remained undecided after three months and one had been in review for 550 days.

The obvious question is how to mitigate the risk. Much of the BSR’s commentary on Gateway 2 delays has centred on submissions lacking proper detail. Equally, it hasn’t always been clear what “good” looks like, and a defining feature of the new regime is that the burden sits with applicants to demonstrate compliance; the regulator won’t do the job for them. That ambiguity extends into Gateway 3, where there is still too little guidance on how contractual risk should be allocated.

Anyone opening the JCT 2024 suite expecting a ready‑made, balanced position for higher‑risk buildings at this stage will be disappointed. The notes are explicit: parties must agree their own approach. NEC’s stance is similarly pragmatic – deal with the risks in the Scope. In other words, you cannot outsource clarity; you have to draft it.

There is no substitute for getting close to the legislation and building a scheme‑specific strategy. On paper, Gateway 3 is straightforward: submit evidence that the works comply with building regulations, together with signed declarations from the principal contractor and principal designer. The pack should include as‑built drawings, a complete record of changes since Gateway 2, and a coherent golden thread that enables the accountable person to manage building safety risks over the asset’s life.

The catch is timing. If you haven’t planned for Gateway 3 before works commence, you are already on the back foot. Developers, contractors and consultants need disciplined change control and a habit of notifying the BSR of material design changes during delivery. Failure here invariably surfaces at the end, when it is most damaging to programme and commercial outcomes.

Data discipline is just as important. You cannot conjure a golden thread at practical completion; you build it backwards from day one. Agree responsibilities, formats and validation rules early, and keep them consistent across the supply chain so the final submission is complete, auditable and quick to review.

Finally, deal with the contractual mechanics explicitly. Unlike Gateway 2 – when the building contract may not yet be in place – Gateway 3 risk lands squarely within live contract frameworks. Under JCT, whether BSR‑driven delay is treated as a neutral event (time but not money) or whether some preliminaries are recoverable while a site remains operational is a matter for negotiation. Employers should also recognise their own duties under the regime: it’s easy to create an impediment that opens the door to time and money claims.

There is no silver bullet. As the market builds experience, the process will improve. For now, the best defence is early planning, clear allocation of risk and relentless documentation.

Vijay Bange is head of construction at Irwin Mitchell