The Building Safety Bill: Draft Secondary Legislation published for Gateway One in England

May 2021

Joanna Lewis and Sophie-Rose Bowen

From 1 August 2021, the Government is intending to introduce several new requirements into the planning system by making amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended) (the “Order”). This marks the first stage of the Government’s implementation of the requirements outlined in the draft Building Safety Bill published in July 2020.

Background

In response to the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt in 2018, and the Government’s consultation on the recommendations set out in Dame Hackitt’s report, the Government published the draft Building Safety Bill (the “draft Bill”) in July 2020.

The drat Bill proposed to establish three separate gateway points during the planning, design, construction and occupation phases of a development:

Gateway One: The planning permission stage whereby statements are required to be provided to the planning authority which demonstrate that fire safety considerations have been taken into account within the project proposal.
Gateway two: The pre-construction phase providing a ‘hard stop’ whereby construction cannot begin until the Building Safety Regulator has approved the Building Control application.
Gateway three: The completion phase whereby the Building Control body assesses whether the work has been carried out in accordance with the applicable Building Regulations. Prescribed documents and information on the as-built building are required to be submitted to the Building Safety Regulator and information must be handed over to the person(s) responsible for the building in use i.e., the Accountable Person.

Following publication of the draft Bill in July 2020, the Housing, Communities and Local Government Parliamentary Select Committee carried out pre-legislative scrutiny of the draft Bill. The key issues raised in the Committee’s report published on 24 November 2020 were discussed in our previous article: here.

On 10 May 201, in response to the pre-legislative scrutiny of the draft Bill, the Government published the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021 (the “draft Statutory Instrument”). This makes the necessary amendments to the Order and the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order 2013 in order for Gateway One to take effect.

Gateway One

The draft Statutory Instrument introduces Gateway One only.

What does the draft Statutory Instrument involve?

The draft Statutory Instrument imposes new procedural requirements before planning permission for a development can be granted. It will:

Require the developer to submit a Fire Statement setting out fire safety considerations specific to the development with a relevant application for planning permission for development which involves one or more “relevant buildings” (see below); and
Establish the Health and Safety Executive (“HSE”) as a statutory consultee for relevant planning applications.

The proposed amendments aim to ensure fire safety matters are incorporated at the planning stage for schemes involving a relevant high-rise residential building.

What developments will be caught by the Statutory Instrument?

The Statutory Instrument will apply to “relevant buildings” which include those that:

Contain two or more dwellings (including flats) or educational accommodation (residential accommodation for use of students at boarding school / later stages of education); and
Meet the height condition of 18m plus in height, or 7 or more storeys (whichever is reached first).

This is broadly in line with the provisions of the draft Bill. However, as noted within the Government’s explanatory notes, the definition of a relevant building is to be kept under review to ensure consistency with the Building Safety Bill once it is enacted. Under the draft Bill, the Secretary of State will be empowered to amend the definition of a high-risk building and it is anticipated that the scope of the draft Bill will be expanded to encompass more building classes in due course.

It is important to be aware that, in addition to the development of any new relevant building, Gateway One will apply to the redevelopment of any existing relevant building and any development within the curtilage of a relevant building.

The Statutory Instrument is intended to apply to developments in England only.

What information will need to be included in the Fire Statement?

The Fire Statement to be submitted by a developer/application for planning permission is intended to include 16 sections. The Government has published guidance as to what information will need to be included in each of the sections of the Fire Statement. In summary:

Section 1: the site address;
Section 2: a description of the proposed development including any change of use intended;
Section 3: the name, qualifications and relevant experience of the person completing the Fire Statement;
Section 4: confirmation as to whether any consultation has been undertaken on issues relating to the fire safety of the development; and what account has been taken of this;
Section 5: the site layout;
Section 6: a building schedule to include information regarding the site, building and resident safety;
Section 7: an explanation of any technical complexities in terms of fire safety and/or departures from information in the building schedule;
Section 8: an explanation as to how issues which might affect the fire safety of the development have been addressed;
Section 9: an explanation of how any policies relating to fire safety in relevant local development documents have been taken into account;
Section 10: an explanation of fire service site plan(s) including what guidance or standards have informed the proposed arrangements for fire service access and facilities;
Section 11: an explanation of the approach that emergency road vehicles would take to access the proposed site entrance/ access points;
Section 12: the siting of fire appliances
Section 13: the suitability of water supply for the scale of the development proposed; and
Section 14: a fire service site plan illustrating emergency road vehicle routes/ tracking, main fire personnel access points to buildings, locations of any firefighting lifts or evacuation lifts.

The Fire Statement must be signed and dated by the individual completing the form (Sections 15 and 16). It is recommended that Fire Statements are completed by an engineer with relevant experience in fire safety or a suitably qualified and competent professional with the demonstrable experience to address the complexity of the development’s design being proposed in terms of fire safety.

The Fire Statement form can be completed as a dynamic fire statement form (which can be completed electronically using drop down answer fields) or a static fire statement form (which can be printed and filled in by hand). Further information as to the format and completion of the Fire Statement can be found here.

Will a Fire Statement be required for all planning applications?

No. The requirement to submit a Fire Statement will not apply to applications for outline planning permission. In addition, applications for planning permission will be exempt from the requirement to submit a Fire Statement where:

The application is for a material change in use of a relevant building and the material change of use would result in the building no longer being a relevant building;
The application is for a material change in use of land or buildings within the curtilage of a relevant building; and
The application is for permission to develop land without compliance with conditions under section 73 of the Town and Country Planning Act 1990.

Does the draft Statutory Instrument place new responsibilities on the HSE?

Yes. A local planning authority will be required to consult HSE before granting planning permission for any relevant building. The HSE will gain important new responsibilities for the safety and performance of the building because it will have direct involvement in planning consultations at Gateway One. The HSE will need to provide clear, positive and transparent information to both local authorities and developers/applicants about the information they require to provide a response to planning consultations.

Take away points

Although the draft Bill is not expected to enter into force until at least 2023 it is currently intended that, subject to Parliamentary scrutiny, the draft Statutory Instrument will take effect from 1 August 2021.

The new requirements will require developers to take steps now to ensure that fire and structural safety of developments are prioritised at the planning stage.

Developers will need to be ready to ensure that the required Fire Statements are put in place for planning applications to be submitted after 1 August 2021.

Those professionals who are to be involved in the completion of Fire Statements (i.e., fire engineers) will need to ensure that they are familiar with what information will need to be included in a Fire Statement and that access to the required information will be readily available at the planning stage.

The draft Bill has been undergoing pre-legislative scrutiny for some time and it remains to be seen how much the legislation introduced to Parliament will differ from the provisions in the draft Bill. It should be noted that, in relation to Gateway One, the requirements of the draft Statutory Instrument go far beyond the recommendations made by Dame Judith Hackitt in 2018, and to some extent, the draft Bill. It remains to be seen whether the same pattern will emerge when the remainder of the draft Bill is introduced.

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