Stuck at the Gateway: Who Owns Building Safety Regulator Delay?

For two years the loudest commercial complaint in the sector was that nothing came back from the Building Safety Regulator. That complaint is being answered: gateway determinations are faster and approval rates are higher than at any point since the regime began. The contractual question is untouched. Delay already absorbed into projects procured between 2023 and 2025 has to land somewhere, and the standard forms were drafted without the gateway regime in mind. Who owns building control approval delay is not answered by the statistics; it is answered by the contract, and in most contracts it is not answered at all.

The Building Safety Regulator's performance data for the twelve-week period to 1 August 2026 records a regime that has substantially recovered.¹ The median determination for a new higher-risk building is twenty-two weeks, against roughly forty-three weeks a year earlier. Remediation applications show a median of thirty-four weeks across the whole cohort, but twenty-one weeks for applications submitted during 2026; internal refurbishment shows thirty-two weeks overall and sixteen weeks for 2026 submissions. The 65 per cent approval target set for the end of 2026 has been passed in every category. The legacy backlog that defined 2024 and 2025 is down to a residue: the quarterly data records fewer than twenty applications from 2024 still outstanding.²

None of that is retrospective. A contractor whose gateway 2 application was determined in nine months in 2024 does not benefit from a twenty-two week median in 2026, and the live caseload is still substantial: 131 new-build and conversion applications covering 30,421 units, 330 remediation cases covering 28,778 units, and 981 internal refurbishment cases.¹ The practical effect of the improvement is to change where the dispute surfaces. While the regulator was the visible cause of everything, gateway delay was a live programme issue argued in progress meetings. Now that determinations are landing, it becomes a final account issue: an extension of time claim, a prolongation claim, and, with increasing frequency, a professional negligence allegation against whoever prepared a rejected application.

The processing problem is receding. The allocation problem has not moved at all.

In a JCT Design and Build contract the instinctive home for a gateway delay claim is the Relevant Event at clause 2.26.13 of the 2016 edition: delay in receipt of any necessary permission or approval for the purposes of the Development Control Requirements, where the contractor has taken all practicable steps to avoid or reduce that delay. It is the obvious fit, and it is attractive because it is one of the few Relevant Events with a matching Relevant Matter, at clause 4.21.4, so it carries money as well as time.

It does not fit. Development Control Requirements are defined by reference to the statutory provisions which control the right to develop the site: planning permission and the conditions attaching to it. A gateway 2 application is not a development control matter. It is an application for building control approval under the building control regime for higher-risk buildings, and it governs how the building may be constructed rather than whether the site may be developed at all. The distinction is not a technicality: it decides whether the claim has a money route under the standard 2016 Relevant Matters list, and on the ordinary meaning of the definition it does not.

The implied term recognised in Clin v Walter Lilly & Co Ltd points the same way. The Court of Appeal upheld an implied obligation on the employer to use all due diligence to obtain any permission, consent, approval or certificate required under legislation pertaining to town and country planning.³ That is a planning term, framed in planning language, and it earned the contractor a 53.2 week extension of time on the facts of that case. It is regularly cited in gateway correspondence as though it were a general obligation to procure regulatory approvals. It is not. Building control approval falls outside its scope, and a claim built on it will be met with that answer.

The fallback is the statutory powers Relevant Event, at clause 2.26.12 of the 2016 Design and Build form: the exercise after the Base Date by the United Kingdom Government or any local or public authority of any statutory power, not occasioned by a default of the contractor or any contractor's person, which directly affects the execution of the works. The Building Safety Regulator is plainly a public authority exercising statutory functions, and the argument is made frequently. It has two problems.

The first is what an exercise of power actually means. Where the regulator refuses an application, issues a compliance notice or a stop notice, or imposes a requirement, a power has been exercised and the clause is engaged on its face. Where the complaint is that a validly made application sat in a queue for twenty-two weeks before being approved, the position is harder. The power was exercised at the moment of determination, and the determination was favourable; the loss is caused by the interval before it. A responding party will say that administrative processing time is not the exercise of a statutory power at all, and that a contractor which knew it was entering a regime with published determination periods took the risk of them.

The second is the carve-out. The clause does not operate where the exercise of the power is occasioned by a default of the contractor or its persons, and eighteen per cent of gateway 2 decisions in the period were rejections. Where an application was rejected for insufficient information, inconsistent design data or an incomplete golden thread, the resulting delay was at least contributed to by the party that prepared it. That is a fact question about the rejection reasons, decided on the application file, and it is where most of these claims are actually won and lost. It should also be noted that under the standard 2016 Relevant Matters list the statutory powers event has no counterpart, so even a successful claim under clause 2.26.12 buys time and relief from liquidated damages, not loss and expense.

The 2024 edition does not resolve any of this. It rearranges the list, placing epidemics at clause 2.26.7 with a Relevant Matter at 4.21.6, and changes in law, the exercise of statutory powers and the publication of guidance at clause 2.26.8 with a Relevant Matter at 4.21.7. JCT's own commentary records that these apply only where the Contract Particulars say so, which makes the first question on any 2024 contract a Particulars question rather than a legal one.⁴ On the gateway regime itself the 2024 suite is silent: it does not address gateway approval, the golden thread, or the relationship between practical completion and gateway 3. JCT has acknowledged that it has not included terms covering the higher-risk buildings regulatory regime, which is why the allocation now lives, if it lives anywhere, in the schedule of amendments.

On a 2024 contract the first question is not what the law says. It is what the Contract Particulars switched on.

NEC4 has no compensation event addressed to regulatory processing time. The nearest candidate is the prevention event at clause 60.1(19), which requires an event that stops completion, that neither party could prevent, and that an experienced contractor would have judged at the Contract Date to have so small a chance of occurring that it would have been unreasonable to allow for it.⁵ That is a force majeure standard. A published statutory approval process, with published determination data and a regulator publishing guidance on what applications must contain, does not come close to satisfying it.

The consequence is that under NEC4 the risk sits exactly where the Scope puts it. If the Scope requires the Contractor to obtain gateway 2 approval and says nothing about how long the regulator may take, the Contractor has taken the timing risk, and the only routes back are an instruction changing the Scope, a Z clause written for the purpose, or the optional change in law provision if it has been selected. Well-drafted current Scopes now deal with this expressly: a longstop period for determination, an agreed treatment of first rejection, and a defined split between the design team's obligation to produce a compliant application and the contractor's obligation to programme around the outcome. Contracts let before 2024 rarely say anything at all.

The two risks are constantly conflated and should not be. Queueing risk is about how long a compliant application takes to determine. Rejection risk is about whether the application was compliant in the first place, and it is a design-management and professional-liability question rather than an extension of time question. A rejected gateway 2 application does not usually generate a Relevant Event; it generates a resubmission, a second determination period, and a question about who is responsible for the deficiency that caused the rejection.

Gateway 3 sharpens the point because of where it falls. A seventy-two per cent approval rate on a sixteen-week median means that more than a quarter of completion applications are refused at the moment the building is otherwise finished, with a further determination period to run before a completion certificate can issue and the building can be occupied. From 1 October 2026 the Building Safety Levy adds a second condition at the same point, since the completion certificate will not be issued until the levy has been paid. Practical completion, liquidated damages, funding drawdown and occupation all now depend on an approval that is not within either contracting party's control, and the contractual machinery in most live contracts assumes practical completion is a matter of certification between employer and contractor alone.

Gateway claims are lost on evidence far more often than on construction of the clause. The regulator's file is disclosable and detailed, the correspondence is dated, and the application history is a matter of record. That cuts both ways: it is unusually good material for proving a claim, and unusually unforgiving of a claim that has been assembled after the event.