The legal implications of Gateway 2 and 3 delays

Neave Maguire, Construction Consultant Solicitor at Keystone Law, discusses the legal implications of navigating Gateway 2 and 3 delays under the building safety regime.

The Building Safety Act 2022 has significantly reshaped the delivery of higher-risk buildings (HRBs), with Gateways 2 and 3 now acting as statutory control points that directly influence programme and budget. While the policy ambition is clear, the practical impact on live projects is substantial and evolving.

Gateway 2 approval must be obtained before construction can commence. Approval periods are being extended well beyond the timelines originally anticipated, with mobilisation pushed back, preliminaries stretched and early-stage sequencing disrupted.

Gateway 3 sign-off before occupation has created a second critical pressure point. Buildings are being physically completed but are commercially unusable, during which financing, insurance, security and staffing costs continue to accrue.

The cumulative commercial effect, particularly for HRBs modelled on tight margins or fixed-price contracts, is now a material factor in viability assessments.

The Building Safety Regulator is still scaling its internal capacity and refining its processes. Response times vary considerably and the absence of a predictable review cycle makes strategic programme planning difficult.

Design teams, Principal Designers and Contractors are also adjusting to the evidential standard required for Gateway submissions. The level of granularity expected goes well beyond the traditional building control regime, and incomplete or insufficiently co-ordinated submissions often result in multiple rounds of queries, clarification and resubmission. This iterative process can add months to a project.

The Regulator is working on an accelerated pathway for certain Gateway applications. However, complex HRBs must continue to undergo full scrutiny, so the fast-track will not alter the evidential burden on project teams.

JCT Design & Build contracts

Under the Joint Contracts Tribunal (JCT)’s Design and Build Contract (2016) (unamended), the Relevant Events (clause 2.26) do not include any express mechanism covering (1) delay arising from compliance with the Building Safety Act, (2) Gateway 2 approval cycles or (3) Gateway 3 certification delays. Contractors under the unamended 2016 form often have no automatic entitlement to time extensions; they carry programme and liquidated damages risk for regulatory delay unless express amendments are negotiated.

Under the JCT’s Design and Build Contract (2024) (unamended), a new Relevant Event at clause 2.26.14 expressly covers delays arising from “any necessary permission or approval of any statutory body which the Contractor has taken all practicable steps to avoid or reduce” and now includes compliance with the Building Safety Act 2022. This is a material enhancement, as it provides an unequivocal basis for contractors to seek extensions of time where progress is delayed by Gateway 2 or Gateway 3 obligations. However, parties must note that this remains a time-only Relevant Event, so cost recovery still requires express drafting. Amendments we are seeing continue to address submission quality, responsibility for providing evidence and internal governance of design information.

The financial implications of Gateway-related delays can be significant, and there is only so much flexibility that funders, developers and contractors are able (or willing) to extend.

The Gateway regime remains in a period of adjustment. For now, the practical reality is that Gateway 2 and 3 processes can be variable, capacity-dependent and difficult to predict, introducing programme and commercial uncertainty even on well-managed projects.

Until the Regulator’s processes mature and industry capability aligns with the new evidential expectations, the most effective mitigations remain enhanced preparation, disciplined drafting and early engagement.

For more, visit keystonelaw.com

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