Will the gateway 2 building safety delays lead to more disputes?

The delays to higher-risk building (HRB) projects being experienced by parties trying to navigate the gateways processes are well known across the industry and continue to make headlines. However, what happens once those projects finally get off the ground has been little considered. The current average delay to a HRB project is 18-22 weeks at gateway 2 alone. The additional programme time and cost has to go somewhere – and the likelihood is that it will ultimately end up in court.

The Building Safety Act requires that HRBs, buildings of 18m or seven storeys in height which contain at least two residential units, must pass through the gateways process – gateway 1 before planning permission is granted, gateway 2 before work can start on site and gateway 3 at completion but before the building can be occupied. Each gateway must be passed to the satisfaction of the Building Safety Regulator (BSR) or the project comes to a hard stop.

Gateway 2 approval was originally expected to take up to 12 weeks (for a new-build HRB) or up to eight weeks (for works to an existing HRB). The reality is quite different, with one delay reported of up 37 weeks for a HRB project by Wembley Park developer Quintain. Add to this further delays at the gateway 3 stage, and projects are being delivered late and at considerable additional cost. Who is responsible? 

>>Also read: Is the government’s building safety regulator shake-up enough to fix the delays?

Contractors, consultants and developers are blaming the BSR – stating that it is understaffed and unqualified to handle the quantity and type of work required. The BSR is blaming the contractors, consultants and developers, stating that 75% of the applications to the BSR are rejected because of missing or flawed information.

Whoever is right here (and it is likely six of one and half a dozen of the other) the client is ultimately going to receive a very late ready-to-use building costing more than first envisaged. In the highly unlikely event that no additional cost is incurred during the build, the cost to the client of lack of use of the asset for months on end will hit projections, causing untold losses.

Delays caused by the BSR as opposed to local authorities granting planning permission of this magnitude cannot have been in the expectation of the parties at the time of entering into contract

As with all construction projects, who could be found ultimately responsible for such delays and losses will depend on the contract and the agreed terms. This seems somewhat unfair, given a lot of these contracts would have been agreed in good faith between the parties months or even years before the true delay issues came to light. The JCT standard form (unamended) allows for additional time and money to be awarded to a design and build contractor for delay in receipt of the necessary approval of any statutory body, or decisions of relevant authorities, which control the right to develop the site. However, delays caused by the BSR as opposed to local authorities granting planning permission of this magnitude cannot have been in the expectation of the parties at the time of entering into contract.

The contractors will not have prepared a gateway 2 submission all on their own; the professional team now have to be engaged and involved much earlier in the project, with gateway 2 approval requiring RIBA stage 4 equivalent design. As late delivery of a project has traditionally been seen to be out of the hands of much of the professional team, there has always been pushback from consultants when attempting to tie their scope of services strictly to the overall programme. It may therefore be hard for delay claims to be brought against the design team. If, however, submissions are vastly lacking material demonstrating how designs comply with building regulations, there is scope for disputes here.

How current projects’ delay issues will play out in the courts is yet to be seen. What can be learnt from this experience is how such concerns might be alleviated, navigated or even avoided altogether going forward. Perhaps a covid-style approach to awarding time but not money to a contractor might seem a fair allocation of the risk? How best to allocate the delay risk across the design team is slightly harder, given that they have no say in delays during the construction phase. Or is now the time to down tools on these projects while the backlog clears?

One professional with a large amount of BSR experience told me recently they think the correct advice to clients is simply not to try to build a new HRB. The latest figures from the British Property Federation, with homebuilding being down 14% in Q1 2025, suggest that what is happening is just that. The risk of delays, spiralling costs and lengthy litigation seem all too great right now.

Sarah Rock is head of construction and partner at Boodle Hatfield