Building Fire Safety Update: in the wake of the Hackitt Report
The Hackitt Report, commissioned by the Government following the Grenfell Tower Fire to examine building fire safety and related building regulations, was published in 2018. The Building Safety Bill proposes significant legislative changes to implement the various recommendations set out in the Hackitt Report.
In June[i] we provided a summary of the Planning Gateway One proposals to change the planning system. These have now entered into force, together with amendments to the permitted development regime which we provide an update on.
Planning Gateway One
Running alongside the Building Safety Bill, Planning Gateway One came into force on 1 August 2021 through amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015.
The objective is to ensure fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving high-rise residential buildings. The requirements are as follows:
- the Health and Safety Executive (HSE) becomes a statutory consultee on applications for development which involves or is likely to involve a high-rise residential building in certain circumstances; and
- “relevant applications” for planning permission must include a fire statement (on a prescribed form or similar) to ensure applicants have considered fire safety issues as they relate to land use planning matters (for instance layout and access).
The aim is to help inform effective decision-making by local planning authorities (or the Secretary of State on appeal) so that those decisions and the actions that flow from them properly reflect and respond to the needs of the local community.
What is caught?
A “relevant application” is one that relates to the provision of a new “relevant building”, or development of, or within the curtilage of, an existing relevant building. A relevant building:
- contains either:
- two or more dwellings (including flats); or
- “educational accommodation“, which is defined as “residential accommodation for the use of students whilst they are attending boarding school or… attending higher education courses, further education courses or courses at 16 to 19 Academies“; and
- is at least 18 metres tall or seven storeys tall (whichever is reached first).
Not all planning applications are caught. A fire statement is not required for:
- material change of use applications if the change of use either would result in the building no longer being a relevant building or only relates to land or buildings within the curtilage of a relevant building;
- an application to vary conditions pursuant to section 73 of the Town and Country Planning Act 1990; and
- outline planning applications.
Detail of statement
Fire statements must include the following information:
- the principles, concepts and approach relating to fire safety that have been applied to each building in the development;
- the site layout;
- emergency vehicle access and water supplies for firefighting purposes;
- what, if any, consultation has been undertaken on issues relating to the fire safety of the development; and what account has been taken of this;
- how any policies relating to fire safety in relevant local development documents have been taken into account.
Government guidance states that the fire statement should include information for the entire development site and not just relevant buildings. Where a fire statement has been submitted to meet the statutory requirements of Planning Gateway One, it must be placed on Part 2 of the local authority’s planning register.
Permitted Development Rights
Changes to the General Permitted Development Order 2015 also came into force on 1 August 2021. These introduced a fire safety prior approval requirement for residential accommodation created pursuant to certain permitted development rights within the scope of Planning Gateway One.
The rights affected are:
- Class MA of Part 3 (changes of use – commercial, business and service uses to dwellinghouses);
- Class A of Part 20 (new dwellinghouses on detached blocks of flats); and
- Class AA of Part 20 (new dwellinghouses on detached buildings in commercial or mixed use);
Therefore, where a developer is seeking prior approval under these classes in respect of a building which will contain two or more dwellinghouses where the height condition of Planning Gateway One is met, they must also submit a statement about the fire safety design principles, concepts and standards that have been applied to the development. The local planning authority must consult the HSE for any such prior approval applications.
The amendments are prospective only. Pending applications for prior approval or works that had begun in reliance of pre-August provisions are not caught by the new requirements.
What comes next?
The Building Safety Bill proposes amendments to building legislation to establish Gateway Two, which will deal with the construction elements of buildings. In particular, the dutyholder will need to show how a building has been designed to be safe and follows building regulations by providing full plans and supporting documents.
On 21 July 2021, the Government published a consultation on the proposed Building Safety Levy, the new term for the Gateway Two Levy[ii] which ran until 15 October 2021. This is a levy on applications for building control approval in respect of higher-risk buildings, the purpose of which is to help the Government to meet its building safety expenditure (such as the removal of unsafe cladding).
The consultation document considers how this levy will interact with the proposed Residential Property Developer Tax (the consultation for which closed on 22 July 2021 and was further addressed in the Autumn Statement – see our articles on this here and here) and the proposed Infrastructure Levy (arising out of the Planning for the Future White Paper published in August 2020). The consultation document seeks views on, among other things, proposed exclusions from the Building Safety Levy which presently are suggested as including affordable housing, hospitals, SMEs, and refurbishment, potential housing supply impacts and viability.
The consultation on the Building Safety Levy ran until 15 October 2021 and we await the Government’s response.
For information on the above please contact Rachael Davidson or your usual Charles Russell Speechlys contact
[ii] Consultation on the Building Safety Levy - GOV.UK (www.gov.uk)
Our thinking
Steven Carey
Steven Carey and Carolyn Davies write for Construction News on a recent cladding court ruling
Cladding court ruling provides post-Grenfell liability pointers
Simon Green
Simon Green and Reem Al Mahroos write for Real Estate Asia on the trend of 'revenge tourism'
Revenge tourism is the new direction of travel for Asia...
Richard Flenley
Building Safety Fund has re-opened for applications
Clare Davis
Clare Davis writes for Personnel Today on hot weather and employment law
Hot summers, hot desks – employment law advice on working through heatwaves
Hannah Turner
Q&A: Tackling technicalities and typos
Our experts answer a landlord’s query about the validity of a section 21 notice
Hope Barton
Q&A: The qualifying criteria explained
What do landlords need to prove to satisfy ground (g) of section 30(1) of the 1954 Act for the purposes of a new tenancy?
Michael Lingens
Charles Russell Speechlys has advised the owners of The Centre for Reproductive and Genetic Health (CRGH) on its sale to FutureLife
CRGH is the largest private fertility clinic in the London IVF market.
Naomi Heathcote
Green leases crucial to achieving net zero in the built environment
‘Net zero’ requires emissions to be reduced as far as possible, and for the remaining (or ‘residual’) emissions to be removed or captured.
Faye Cunningham
Closing the loophole or cumbersome rules? Beneficial owners of non-UK companies acquiring property within the UK to reveal their true identities
Samuel Lear
Samuel Lear answers the EG Legal Q&A on code rights
Q&A: Code rights queries answered
Claire Fallows
Politics, planning & life sciences clusters
Charlotte Duly
Retail Bulletin quotes Charlotte Duly on the House of Zana trademark row with Zara
"In this battle of David and Goliath, the little guy has come out on top."
David Coates
Charles Russell Speechlys advises Puma Private Equity on its investment into MUSO
We have advised long-term client Puma Private Equity on its investment into MUSO TNT Limited.
Helen Coward
FT Ignites Europe quotes Helen Coward on portfolio manager bonuses
"HMRC has had asset managers in their spotlight for some time now"
Emma Preece
Success for landlords as Court of Appeal dismiss cinema operators' appeal on COVID-19 arrears
Melania Constable
Melania Constable and Jessica Williams write for Pharmacy Business on what the collapse of Testerworld means for community pharmacies
What does the collapse of Testerworld mean for community pharmacies?
Mark Howard
IT Pro quotes Mark Howard on investment in UK tech start-ups
"The UK has the strongest venture and growth capital funding ecosystem in Europe.”
Christopher Hadnutt
Chris Hadnutt writes for Building Magazine on construction project defects
Chris Hadnutt writes for Building Magazine on construction project defects
Laura Bushaway
Are the Government’s plans to reform the leasehold and commonhold systems in England and Wales on a break?
Tristram van Lawick
The Sunday Times quotes Tristram van Lawick on investment into country estates
“For overseas buyers the security of the UK property market is seen as a safe investment compared with other parts of the world"