Gateway delays: the issue, and how to tackle it

The Gateway regime imposed by the Building Safety Act 2022 on higher-risk buildings (“HRBs”, namely those over 7 storeys or 18 meters in height that contain or will contain at least 2 residential units) has come under fresh scrutiny recently after concerns were mounting over the Building Safety Regulator (“BSR”)’s resourcing problems disrupting development and remediation works throughout the industry.

The BSR’s management of Gateway delays

In brief, the regime (in force from October 2023) is as follows:

1. Gateway 1: which is the “planning stage”: this is to ensure that fire safety considerations are inherent within the design proposals, and requires a fire statement and HSE assessment of the application before planning permission can be granted
2. Gateway 2: which is the “building control approval” stage, for HRBs: this requires demonstration of how the proposed works will comply with the functional requirements of the building regulations, evidenced by way of a comprehensive outline of the work to be carried out, site location, fire and emergency plans, a plan for the construction stage and critically, a change control plan, and which must be passed before works can commence on site;
3. Gateway 3: which is the “completion stage” which is to be passed prior to occupation of the building. It requires assessment of the “golden thread” information, evidence that what is built reflects the approved plans and complies with all applicable requirements of the building regulations. Only after this is passed can the building be registered as an HRB and occupied.

For each Gateway, the BSR relies on a variety of external support such as a multi-disciplinary team at Gateway 2.  The co-ordination of these resources is for the BSR to arrange, which has been cited as where the current problem lies.

The original assumptions as to the timeframes for approvals (12 weeks at Gateway 2 for new HRBs and 8 weeks for existing buildings) have been shown to be extremely inaccurate.  Andrew Moore of the BSR reported 22 weeks for the process in February, and the situation has not improved – accepting the original caveat for complicated works, the extended delays are now resulting in timescales of 25-40 weeks for approvals at Gateway 2 and there are concerns that delays will begin to be seen at Gateway 3 as well.

The BSR responded to this in May 2025 citing that incomplete or insufficient applications were also a cause, and promised to take a “firmer approach” – rejecting applications outright without effectively wasting time on applications that will ultimately be rejected due to lack of content.  This was followed on 23 June 2025 by the House of Lords launching a committee which issued a call for evidence from the industry on the performance of the BSR.

What the Gateway delays mean for developers

Few construction projects are planned with the contingency of nearly a year’s wait for approvals, and the  development process cannot accommodate such a pause due to several important factors such as pricing, lease/funding requirements, planning permission and housing need – all of which could be seriously compromised by the delays.

On the practical side, the onus is on developers, Principal Designers and Principal Contractors who make the applications to ensure that they are made in such a way that when the BSR considers the application, it is satisfied as to its compliance without drawing out the process.  Those responsible need to actually set out what they consider the applicable regulations to be (referencing not just Building Regulations but also the relevant codes and guidance that may apply), and to pick apart the design to illustrate where it meets these requirements throughout.

Those planning HRB work are encouraged to obtain outside consultancy assistance for getting applications right in the first place, issued at the right time and that the necessary information gathering is conducted well in advance of submission.

We can look to the legal documents for some room for manoeuvre. Some suggestions are as follows:

1. Programmes – any and all programmes of works should include provision for anticipated delays in Gateway approvals. Without this, the parties are heading into a project structure with unrealistic expectations – which will mean that they need to manage the risk as soon as it rears its head, instead of allowing some contingency time for the uncertain approvals period to play out. This can be aided by a tighter reporting regime – any influence on programme compliance should be required to be notified early so as to allow the parties to manage the consequences.  (The NEC4 early warning principles and the programme being used as a “live” contract document is useful to this purpose)
2. Pricing – fluctuations might be an option for projects which are subject to the “approvals risk” but employers are naturally wary of allowing price flex. The parties need to decide at the start what happens if prices are subject to change throughout the “approvals pause”, and whether an appropriate threshold of time for contractor liability to switch to employer liability can be agreed. In addition, the cost of delays is not the only cost for developers to consider.  A recent report by Cast project managers[1] said that the average cost of a Gateway 2 approval alone is £28,000 – allowing appropriate provisional sums for application costs would be a prudent measure for both parties
3. Other agreements – developers are well advised to take note of sanctions in “upstream” contracts such as leases or funding agreements for delays. Where possible, contingency arrangements (to be adopted where there is unreasonable withholding of statutory approvals) ought to be built into such agreements.  This is to avoid projects being put at risk by delays in approvals, and to allow the developer and contractor some breathing space.  Parties should be realistic about the prospect of delays and decide early on: who bears the cost if the project is delayed (recognising and balancing the “pain” on each side, for example loss of rent), whether a failure to reach project milestones triggers the “red button” response of jeopardising a lease or funding, and whether leeway can be permitted in the circumstances.  Lenders and landlords are encouraged to review their portfolio agreements and general policy for HRBs until the situation rights itself
4. Practical completion – it will also be important to ensure that care is taken when agreeing and documenting the criteria for practical completion, including release of retention and the running of the rectification period, given the requirements to be met at Gateway 3 go well beyond the usual requirements for practical completion.
5. Contractual liability – requiring a contractor solely to bear the cost of Gateway delays, particularly where the responsibility for obtaining approvals ultimately rests with the developer, is in principle very one-sided. Nobody wins when the contractor is pushed  into insolvency due to mounting overheads on a dormant site – therefore the parties should look at flexing the contract terms on delays.  Liquidated damages “holidays”, qualification of the right to extensions of time specifically relating to Gateway approvals, and long stop dates for walking away (should suspension occur due to Gateway delays) are all options available to the parties when seeking to strike the right balance to manage the risk.   This can be supplemented by solid requirements as to the delivery of information (in particular “golden thread” information and documents to be delivered pre-practical completion), mandatory occurrence reporting regimes and early delay mitigation measures to ensure that the contractor is not leaning too heavily on the more relaxed approach
6. Partnering and collaborative contracts – also championed by the new Procurement Act 2023, this is an option for parties seeking to adopt an approach that shares the pain/gain of delays and approvals (and other construction considerations) more widely.

Managing the consequences of any Gateway delays

Even where these considerations and allocation of risks have been fully considered at the outset of the project, setbacks arising from the BSR’s delays will still create a risk for the project, given the inherent complexities and uncertainties linked to many delay related claims.

This may be particularly so where BSR related delays occur concurrently with other unconnected delay events, and/or are caused or exacerbated by reason of earlier delay events. Whether or not the contract terms provide that BSR delays give the contractor an entitlement to time and/or money, the interplay of that delay event to any other delays affecting the project may still increase the chances of the parties ending up in a dispute. Full record keeping and proactive management of delay events will therefore be important to ensure that disputes can be avoided or resolved favourably at an early stage.

BSR delays may also cause an employer to give instructions to reduce the scope of work and/or accelerate performance of the remainder of the works. Again, as both can give rise to complex and highly fact sensitive valuation disputes, it will be imperative to ensure that contractual and valuation processes are followed fully and promptly, and early advice is taken in relation to any potential disputes.

Ultimately, a degree of pragmatism will be required, not only to minimise the time and costs that may be incurred if matters progress to a formal dispute, but also in recognition the risk of heavy “risk shifting” causing insolvency either at main contractor level or lower down the supply chain, including by reason of cash flow difficulties caused by what may be significant delays to the project.

While steps are being taken to attempt to reduce delays, for the meantime, developers need to ensure they work with their legal partners to build in as much flexibility as possible to mitigate both the prospect of delays and the potential impact of them.

If you have any questions about the topics raised in this article, our BSA team can help. We have expertise in helping organisations navigate the complexities of the building safety regime. We take a joined up approach, that draws on expertise from across our Construction, Real Estate, Real Estate Finance and Real Estate Disputes departments.