Design change woes for unwary under Building Safety Act gateways

The HRB regime is an important aspect of the BSA, introducing a more stringent regulatory framework for the design and construction of higher risk buildings (HRBs). HRBs are defined as buildings that are at least 18 metres in height, or have at least seven stories, and which contain at least two residential units.

Gateway 1 of the BSA is the planning application stage. Gateway 2 requires  the developer of the project to obtain “building control approval” from the Building Safety Regulator (BSR) prior to commencing development work. The intention is that the design is significantly developed at that stage and that safety has been fully considered.

There are often changes made to designs during the construction phase. Project developers must now factor in possible delays to the project should they make such changes to the design approved in the Gateway 2 application.

There are two types of changes that must be provided by project developers to the BSR:

• “Major changes”: changes to the proposed use of the building, the layout, and dimensions of the overall HRB. The BSR may require up to six weeks to provide approval.
•  “Notifiable changes”: changes to the fire and emergency file/fire compliance information. The BSR must be notified of either type of change and then has 10 working days to respond.

Getting approval for changes, including omissions, could result in significant time delays. Developers should therefore aim to progress the design as far as is reasonable, prior to submitting the designs for building control approval. This should be done in the hope of eliminating or, at very least, minimising any major changes that need to be made later during the construction phase.

To do this, contractors will need to be brought on board as soon as possible and, generally, sooner than they often have previously been, in order to develop and verify the designs. Early contractor involvement (ECI) can be managed through a Pre-Construction Services Agreement to properly cover the design work and services carried out by the contractor, acting essentially as lead consultant.

The prospect of “design and dump”, whereby a design is developed by a design team then simply handed off to a contractor, is going to be difficult for a contractor to accept if they are carrying the risk of the time and cost of developing the design in the construction phase.

If developers wish to make changes during the construction phase, any costs that arise from amending the designs and submitting the application to the BSR should realistically sit with them. In these situations, developers would ultimately also have to grant the contractor an extension when the change is formally instructed. Developers may wish to have the change approved by the BSR before formally instructing it.

Assessment will need to be made as to whether the change is ultimately for the developer's benefit or the contractor’s benefit and cost and time risk would need to be allocated accordingly. Value engineering may ultimately be beneficial to the developer, but it is important to assess if the saving will be eroded or exceeded by the costs in waiting for approval.

Contractors may want to make changes that just benefit them, such as procuring cheaper materials which may then be of lower fire performance classification. This would then also require approval with the contractor accepting the time and cost consequence of the approval process.

Developers may also want to consider the ability of interested third parties such as funders, purchasers and tenants to instruct changes. Developers will need to be more robust and restrict the ability for these parties to make changes or insist they carry the time and cost implications.