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08 January 2024 by Jon Pagan, Head of Technical at Kiwa Fire Safety Compliance & FIA Fire Engineering Council Chair
This is intended to be a short article summarising my personal views on what the impact of Gateways 2 and 3 will be on fire engineers who are working on projects that are going to go through that process.
The Building Safety Regulator (BSR) has published a guide to the new regime which would be well worth reading. https://www.hse.gov.uk/building-safety/building-control/regime-overview.htm
The new regulations are a large step change from previous approaches, requiring significantly more information and design to be completed before the project can start on site. Compared to previous approaches, the new regulations are inevitably going to mean that start on site is going to be delayed by several months. My concerns are that this could be extended to a year or more, especially in cases where the client, designers and contractors don’t take on board the seriousness of the new regulations.
I have looked into the new regulations relatively thoroughly, including discussions with others in the industry as well as attendance at many of the workshops that the Building Safety Regulator organised. But the regulations are new, which means that many of the issues discussed below are down to my best guess as to how they will impact in practice. That does include a certain amount of 'crystal ball gazing' from myself. With that caveat, let's plough in.
What’s the impact on current projects?
The Gateway 2 and 3 processes have only recently come into effect, and are not retrospective, so in practice they are unlikely to apply to any projects which are currently under construction. They only apply to projects where the Building Regulations application was after 1 Oct 2023 or where work starts on site after April 2024. However, the April 2024 deadline is rapidly approaching.
After that, it will be illegal to start any HRB (Higher Risk Building) projects on site until Gateway 2 approval has been given.
What’s the definition of HRB?
The Gateway 2 and 3 processes only apply to buildings that are classified as Higher Risk Buildings (HRBs). There is specific legislation clarifying what HRBs are, but the definition varies depending on whether it is in construction or in use, so it is complicated. The criteria for height (18m or 7 stories) is relatively consistent, but other criteria, such as the occupancy type and how larger developments are dealt with varies.
There are three government websites describing the criteria for HRBs, depending on whether it is for buildings in construction, buildings in occupation, or existing buildings where building work is being carried out. https://www.gov.uk/government/collections/guidance-on-the-criteria-for-being-a-higher-risk-building
In many cases it will be pretty simple to work out whether a building is an HRB. For example, a 30m high residential tower will clearly be an HRB. However, in larger developments with multiple blocks it may be more complex, particularly as the definition of an HRB varies depending on whether it is in the design/construction stage or in the occupation stage.
For larger developments, if more than one structure is 'attached' then those structures count as a single 'wider building'. In the occupation stage it is possible to break the 'wider building' into separate individual 'buildings' depending on whether there is internal access between them. However, that does not apply during construction.
So, a larger development, with various blocks connected via a basement car park would be a single building, even if only one of the blocks is over 18m high. This is explained in more detail in this government guidance notes referenced above.
There can be some wide-ranging implications to this, so it's important to establish these criteria from an early stage of the design.
Link between Gateway 1 and Gateways 2 and 3
I've heard various people state that if a building's fire statement (and potentially fire strategy) has been approved under Gateway 1 then it must automatically be acceptable under Gateways 2 and 3. I'm afraid that isn't the case. Gateway 1 is under Planning legislation. Gateways 2 and 3 are under Building Regulations. There is no direct link between the two.
Under Gateway 1, the Building Safety Regulator (BSR) is a consultee, but not the approving body. Under Gateways 2 and 3 the BSR is the approving body. The BSR has different teams for Gateway 1 and for Gateways 2 and 3, so whilst any comments from the Gateway 1 team are likely to be passed to the Gateway 2 team, there is no guarantee that they will take the same view. More fundamentally, Gateway 2 requires a lot more information than Gateway 1 so the Gateway 2 review is much more extensive.
A design based on a fire statement that is approved under Gateway 1 is less likely to have fundamental rejections of key issues under Gateway 2 than a design that has not been through that process, but that is a long way from a guarantee of approval.
I’d also note that the definition of the types of building that have to go through Gateway 1 is not quite the same as for Gateways 2 and 3. The height criteria are the same, but the usage criteria is different (e.g. hospitals are excluded from Gateway 1, but not from Gateways 2 and 3).
Documentation needed for Gateway 2 application
The Gateway 2 application requires a range of documentation to be submitted, much of which is prescriptive. This includes documentation such as details of the client, principal designer, principal contractor, competence declarations, construction control plans etc. most of which would be the responsibility of others in the design team rather than the fire engineer. As this article is primarily focussed on the issues which affect fire engineers, I’ve not covered this in any detail, but it would be worth checking that the design team are aware of the various documents that would be required because if any are missing, the application may be rejected.
The main document which applies to the fire engineer would be the fire strategy report which would be part of the Fire and Emergency File, although the fire engineer may also be involved in other documents such as partial completion strategies.
Level of design detail needed for Gateway 2 application
One of the fundamental purposes of the Gateway 2 process is to ensure that the design is completed and approved before work starts on site. That means that the design that needs to be submitted for Building Regulations approval needs to be a complete design.
Current practice is that the initial Building Regulations application would be a relatively early stage design, with more design carried out, and further details to be submitted whilst the construction is under way. That is no longer going to be acceptable.
The principle will be:
- Do the design;
- Get the design approved;
- Build to the approved design;
- Occupy the building.
Each of those will be a specific stage, and it will no longer be acceptable to have any overlap between those stages. In particular, it will be illegal to start building before the design is approved. It will also be illegal to build something different than what was approved.
If the Building Regulations application includes designs that are at an earlier stage, such as a ‘for tender’ design, that would not be acceptable, because that’s a provisional design that will be replaced later. So, realistically it needs to be a ‘construction stage’ design, for everything that forms part of the Building Regulations application. This is a much more extensive level of detail than the industry is used to providing.
The fire strategy will specify that certain fire precautions need to be included in the design, so the Gateway 2 application would need to include the fire strategy plus the detailed designs of those fire precautions. If, as part of the BSR approval process, there are comments on the fire strategy which require it to be changed, then it may also require the design of the relevant fire precautions to be changed.
Once the design is approved construction can start on site. From that point onwards, if there is a need to make changes to the approved design that would have to be carried out via the formal Change Control process and each individual change would have to be applied for one-by-one. So, realistically, any significant value engineering needs to be carried out before Gateway 2.
This will be a massive shock to many in the industry, particularly if they haven’t been paying attention to the new regulations. Once the industry gets used to it, this change should stop the chaos that currently occurs due to large amounts of design, design changes and approval occurring during construction. But the transition will be painful for many.
Once the design has been approved, the contractor can start building to that design. If any changes subsequently occur to the design they will need to need to be managed through a Change Control process.
There are two types of change, all of which would need to be registered on a Change Control log:
- Major changes
- Notifiable changes
For notifiable changes, it will be necessary to notify the BSR about the proposed change, but there is no need for specific approval before carrying them out.
For major changes it will be necessary to notify the BSR and get approval before implementing them on site. It will be a criminal offence to start work on the change before gaining approval. It will therefore be vital to ensure that this is managed carefully.
The BSR Guide that was mentioned earlier includes a summary of the changes which are considered to be Notificable or Major. Major changes do include obvious things, such as adding an additional storey to the building. But the list of Major changes also includes some items which may seem relatively minor. For example, any changes to fire safety precautions (active or passive) would be a Major change.
So, any changes to fire alarm systems, sprinkler systems, smoke ventilation, cavity barriers, fire doors, penetration sealing systems or any other active or passive fire safety precaution would require an application and approval from the BSR before being carried out on site. If the change is due to problems identified on site (e.g. it is found that there are clashes or problems with the original approved design) then work on that area will have to stop until the revised design is developed and approved. If the works on site are carried out without that approval, it would potentially be a criminal offence.
It is hard to know what enforcement actions the BSR may take in these situations, but it does demonstrate how careful contractors will have to be to ensure that they build to the approved design, and that they need to carefully manage any changes from that approved design.
The industry has become used to early engagement with the Building Control (and other regulators such as the fire service). When used correctly this has been very beneficial because it is possible to clarify strategic issues, such as the fire strategy report and the relevant design standards, at an early stage before going too far into the detail.
Unfortunately, it has also been used incorrectly in the past, with some design teams using Building Control as a member of the design team. We’ve all heard people ask Building Control “Just tell us what you want, and we’ll do that.” That approach is wrong. Building Control are legally barred from designing. The design team should design, and Building Control should review that design.
For HRB projects, the BSR will be the Building Control body. The new process implemented by the BSR involves a clear separation between the design team and the BSR. This means that the BSR will not engage in any discussions on projects before the full Gateway 2 application is submitted. The BSR do have a service where questions can be submitted to them, but that would exclude specific comments on projects. As mentioned above, the Gateway 2 application needs to include a fully detailed design. So, there may be years of design work before any engagement with the regulator.
That means that there is a high probability that the BSR may have some comments or objections to relatively fundamental aspects of the design, such as the fire strategy. This may be a disagreement as to the design standards that have been used, or a disagreement about the fire size or location used in a CFD analysis. If that occurs, there may be a need for significant redesign and months (or years) of design work may be wasted.
In the past, early engagement with the regulators has been seen as ‘good practice’ and fire engineering design standards such as PD 7974 recommend qualitative design reviews (QDRs) as a way of facilitating that early engagement. When I raised this with the BSR I was told that early engagement is no longer seen as good practice.
I have to say, whilst I understand the problems with the previous approaches where some design teams abused the early engagement that Building Control offered, but the approach that is now being taken is so extreme that it is not really workable. With the complexity of tall residential buildings, this approach is simply going to guarantee a 100% rejection rate for applications, and months, if not years, of delays before they are finally approved.
I would be very happy to be proved wrong on this. I genuinely hope that I am. Maybe design teams can develop designs that can guarantee BSR approval. Or maybe in practice the BSR will take a less strict approach on this issue than they have stated to date. Time will tell.
In practice, design teams who are aware of this issue are likely to take a very risk-averse approach where they simply try and make the design as ‘code-compliant’ as possible in order to reduce the risk of objections. That will mean less use of fire engineering analyses. Some in the industry will see that as a good thing, where they see ‘code-compliance’ as the gold standard and designs based on fire engineering as somehow being a lower standard. Obviously, I’d disagree with that. Anyone who has sat on a committee would realise that ‘code-compliance’ is not necessarily perfect and, when used correctly, fire engineering can be used to help develop designs that are at least as good, or better, than ‘code-compliant’ designs.
Competency qualifications for fire engineers
In the past there’s been no requirements for any specific qualifications for anyone operating as a fire engineer, which has resulted in many people offering themselves as fire engineers without any real qualifications or competence in the subject. Clients often didn’t care, and went for the cheapest bid, which led to a race to the bottom.
The new regulations require the client to include within the Gateway 2 application a Competence Declaration which would describe how they went about verifying the competence of the various organisations that they appointed to the design team (which would include the fire engineer).
The Engineering Council has recently published a UK-SPEC for people working on HRBs, which is an add-on to each of the current engineer levels (EngTech, Ieng and Ceng). The IFE are in the process of setting up their processes for dealing with applications under that new UK-SPEC, so currently there are no fire engineers approved to that standard. But in time, presumably there will be an expectation that any fire engineers working on HRBs will need to be on that list. When that happens, it will result in a massive shortage of qualified fire engineers, at least in the short term.
Under the Building Safety Act, misleading the BSR is a criminal offence.
There are many ways in which this could occur. One of the ways that may be hardest to deal with is sending misleading product information to the BSR.
In my experience, it is endemic within the industry for product suppliers to produce technical documents that provide details about their product’s performance, but regularly missing out on key details. For example, the supplier of a product might confidently state that it achieves a particular fire performance, whilst omitting to mention that only have fire test data for the product being installed in a limited number of wall types. That technical document would therefore be misleading as it could lead to designers unknowingly including it in inappropriate wall types.
If the design team then incorporate that product into a type of wall for which there is actually no test data, and include that misleading technical document in their application to the BSR under Gateway 2, they may have inadvertently misled the BSR, thereby potentially committing a criminal offence.
I raised this exact example in a meeting with the BSR and their response was to agree that an offence had occurred, but BSR’s approach would depend on mitigating factors such as how much checking the design team had carried out before including that product into their design. If they had carried out extensive checks and still been accidentally misled, that would help. However, if they had only carried out cursory checks, that would not be helpful.
As mentioned above, this is unfortunately endemic in the industry, so any application that includes several hundred product details will likely include several that have misleading information.
To take this seriously, designers and contractors would have to carry out a much more rigorous check than they currently do of products before they include them in the design. That may include asking the fire engineer to review and approve any products that need a specific fire performance (which would often be a very time consuming exercise). We will have to see whether that will happen in practice.
The majority of this article has been about Gateway 2, mainly because that is the most immediate issue to deal with. Projects will in most cases only have to go through Gateway 3 if they have already gone through Gateway 2. Gateway 3 applies on completion of the project, which means that in practice, on new build projects, the Gateway 3 process won’t be required for a few years.
One particular point I would mention though is that Gateway 3 requires certain documentation to be included in the application. The BSR Guide that is mentioned earlier confirms that one of those documents is a “signed declaration from each construction phase dutyholder [i.e. the client, principal designer and principal contractor] that they are confident the building satisfies all applicable functional requirements”.
The BSR have stated that those signatures are going to be on a form that they provide and they will not be allowing any changes to the text (e.g. the signatories won’t be able to add text that reduces their risk, such as “as far as we are aware”).
As noted earlier, misleading the BSR is a criminal offence, so if it later turns out that the as-built building does not actually satisfy all functional requirements of the Building Regulations, that could be a very serious issue.
The client, principal designer and principal contractor would therefore need to consider what level of checks they would require in order to provide their signatures to that document. If that includes additional checks (e.g. site inspections by the fire engineer to confirm that the building is being built in accordance with the fire strategy) then they would need to put that in place before construction starts.
This article is intended to be a very brief summary of some of the key aspects of the new Gateway 2 and 3 stages as they impact fire engineers. The regulations are very extensive, and some of the issues are relatively complex, so anyone working on an HRB project needs to make sure they are fully aware of them.
The new Gateway 2 and 3 stages are the biggest changes to Building Regulatory approval processes for decades. Many of the reforms that are being introduced are long overdue and absolutely necessary to address the poor standard of construction that has occurred in the past.
However, some of the new approaches being taken are very extreme. In particular, the absence of any early project consultation being allowed with the BSR before the Gateway 2 application (which needs to be a finalised to a 'construction stage') will likely result in an extremely high rejection rate, followed by months (maybe years) to redo designs to the point where BSR approval is obtained. As construction can only start once Gateway 2 approval is given, that is likely to result in a complete halt to new HRB construction throughout the country for a year or more, once the April 2024 deadline passes.
In practice, what is likely to happen is that, once the above scenario becomes a reality, and the drop-off in construction activity occurs, there will be an increased pressure on the construction industry and the BSR to deal with this. That will probably include further focus on the construction industry to improve the quality of their applications, but may also mean the BSR reviewing some of their policies. In particular I suspect that the lack of early engagement is simply not sustainable. Unfortunately, we will have to go through the pain until that occurs.
For any clients who are brave enough to be one of the first to try to go through the new Gateway 2 process, that pain is likely to be due to a cycle of applications, rejections, redesigns, re-applications, rejections, redesigns (and so on). That is likely to be an unpleasant process for everyone involved.
Many in the industry who are aware of the new regulations are reacting to it by making sure that they are not one of the first to go through the process, thereby hoping that others take the pain. Whilst that may be sensible approach from their perspective, it will have the result of further reducing the amount of construction activity, so it will have a negative impact on the industry as a whole.
In time I genuinely believe the new processes will be good for the construction industry and for future residents of these buildings. But in the short and medium term, there are some serious challenges before we get there.
By Jon Pagan, Head of Technical at Kiwa Fire Safety Compliance & FIA Fire Engineering Council Chair
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Head of Technical at Kiwa Fire Safety Compliance & FIA Fire Engineering Council Chair
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