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)