How can we get more HRB projects through the new building control Gateways?

The government has published its response to the Grenfell Tower Inquiry Phase 2 Report. It accepts all the inquiry’s findings and sets out extensive plans to follow up on the report’s recommendations. The many initiatives include plans for a single construction industry regulator, licensing for higher-risk building (HRB) principal contractors, new requirements for principal designers, a review of the definition of an HRB and a construction products green paper. There is lots to be done over the next few years, but what about all the HRB projects queuing at, or turned back from, the new building control HRB Gateways, in particular Gateway 2?

If we look at the pass results reported for applications for Gateway 2 approval of proposed HRB work, we see that many applications have failed to achieve approval. Various reasons have been suggested for this, but how might the poor pass rate be improved? The Building Safety Act and its family of regulations run to hundreds of pages, not to mention the published guidance, but reading the fine print is not enough.

There is also the rather important matter of interpretation. Words in dictionaries are one thing, but what a document means can be quite another, and as Dame Judith Hackitt’s final Grenfell report noted: “Ignorance –regulations and guidance are not always read by those who need to, and when they do the guidance is misunderstood and misinterpreted“. And there is much to be understood and interpreted to achieve the serious culture change required. Cultures, however, are hard to change.

The regulator says it will no longer engage in pre-application discussions with developers prior to submission, but it has set out what it wants to see, and that looks like a lot of homework. Applications for Gateway 2 approval must:

• clearly identify every aspect of the project that requires compliance with Building Regulations;
• clarify which standards, codes, or approaches the building design complies with and explain why each standard was chosen and how it applies to the project;
• justify compliance by providing a narrative that explains how compliance has been achieved for each identified element of the HRB. (This document is key.)

This is a radical departure from the less demanding previous Building Regulation regime and involves, as the regulator has acknowledged, “huge up front work”, but it is the only way to achieve exam success.

There is also the separate concern of resources; does the regulator have enough? It lacks the necessary expertise in-house and needs to bring in experts, which all takes time, and that is not good news for applicants with critical programme dates to meet. Nor is the news that the 8- and 12-week periods for approval in the HRB Regulations are apparently only average periods. The prospect of substantial delays may even deter prospective projects.

And then, of course, there are the new Building Regulations requirements, which affect not just HRBs but any works to which the 2010 Regulations apply, and which raise the bar for construction projects. A new set of duty holders, following the health and safety lead of the CDM Regulations, have new duties.

Any person carrying out any building work or any design work must have, if an individual, the “skills, knowledge, experience and behaviours necessary”. If not an individual then they must have the “organisational capability”, which means appropriate management policies, procedures, systems and resources to ensure individuals under the control of the organisation carrying out any building or design work comply with the appropriate competence regulations; and that individuals in training are appropriately supervised.

The client also has duties; in fact anyone proposing to use someone to carry out any building or design work, before permitting them to carry out any work, has to take all reasonable steps to satisfy themselves that they either meet the competence requirements or are in training to do so, with supervision arrangements. All new and important stuff but another culture change – up a gear or three, not to mention the challenge of how competence is to be measured.

And while major construction players might have the resources to take on the challenge of dealing with all these new requirements, where might that leave less well-equipped medium, and small, construction companies and firms? The government says its new proposals will require profound change in culture and behaviour that will take time and commitment, but so does the new regime already in place, to which we can add lots of education, learning and homework.

Kwadwo Sarkodie is a partner and Kiran Giblin is a senior associate at Mayer Brown International