Developers will by now be familiar with the implications of the “Gateways” procedure introduced by the BSA. If nothing else, it's now clear that construction programmes will need to account for the 12-week and 8-week review periods which the Building Safety Regulator (BSR) will have to determine a building control approval application (Gateway 2) and issue its completion certificate (Gateway 3).
An obvious question is what then happens if the BSR fails to respond within these statutory time periods? The latest government guidance confirms that applicants can contact the Secretary of State for a non-determination application by emailing RB.non-determinations@levellingup.gov.uk for full instructions on how to submit their application. The non-determination application is made under Section 30A of the Building Act 1984. Should this application be successful, the Secretary of State must then determine (or appoint someone to determine) the developer's original application.
Bearing in mind that some project delays arising out of the implementation of the BSA might, depending on the negotiated position, end up being “developer's risk” under the building contract, developers should make sure that they and their advisors understand the process for having applications decided as soon as possible, in the event of a BSR-induced delay.
The applicant must inform the Regulator of their intention to make a non-determination application to the Secretary of State. This notification must be given to the Regulator at least 2 working days before submitting the application.
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