The Building Safety Bill currently before Parliament aims to enhance fire safety in relevant buildings, and introduces the concept of gateways at three stages: planning, construction and handover.
Projects must be signed off at each gateway by the new building safety regulator (BSR) before the project can proceed to the next stage or residents can move in. The three points were proposed by Dame Judith Hackitt in her review of Building Regulations and fire safety, and the first gateway came into effect on 1 August with the introduction of the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021.
Relevant buildings have to pass gateway one if they are to proceed to construction. They are defined in the 2021 Order as those containing two or more dwellings or that are used for educational accommodation. They will be at least 18m tall, excluding plant, or seven or more storeys high, excluding any underground storeys.
Existing buildings that are redeveloped or repurposed and subsequently meet these criteria are also included, as are developments in the curtilage of a relevant building.
The Health and Safety Executive (HSE), within which the BSR is based, is now a statutory consultee on planning applications for relevant buildings. Outline planning applications and applications for minor amendments to a permission under section 73 of the Town and Country Planning Act 1990 are excluded from gateway one, although a local planning authority (LPA) must consult the HSE before granting a section 73 permission If the LPA, exercising its discretion as a planning authority, considers it appropriate to consult the HSE. In practice this would be cases where the location or use of the building meant that the HSE's input should be sought.
To meet the requirements of gateway one, developers of relevant buildings will have to submit a fire statement, containing details of fire safety design principles, concepts and standards that have been applied to the development.
Fire statements must be prepared by suitably qualified engineers with relevant experience in fire safety or a suitably qualified and competent professional with demonstrable experience.
Given the current shortage of fire engineers and potential delays in the preparation of planning applications, however, there is a risk that not all statements will be produced by suitably qualified persons. It remains to be seen how the HSE and LPAs will respond where the experience of the person who prepared the statement is in doubt.
'To meet the requirements of gateway one, developers of relevant buildings will have to submit a fire statement'
The Hackitt report recommended 'an integrated systemic change, not a shopping list of changes [that] can be picked out on a selective basis'. Government guidance states that gateway one 'will ensure that applicants and decision-makers consider planning issues relevant to fire safety … thinking [about] fire safety matters as they relate to land use planning … and result in better schemes [that] fully integrate thinking on fire safety'.
But without the additional measures proposed in the Building Safety Bill, there is a risk that fire statements could become a paper exercise rather than contributing to integrated systemic change.
Gateway one is limited in scope but regard for health and safety is already well established in the planning system. The National Planning Policy Framework (NPPF) specifically states for instance that 'planning policies and decisions should promote public safety and take into account wider security and defence requirements'. The NPPF also considers safety in relation to highways, advertisement consents, aviation and gas storage.
Some LPAs currently require details of emergency services access to be set out in a design access statement, while public safety is considered to be a potential reason for enforcement action. Planning practice guidance on this point is limited, but the NPPF does say that LPAs 'should ensure that a stop notice's requirements prohibit only what is essential to safeguard amenity or public safety in the neighbourhood'.
While the HSE's role as a statutory consultee for relevant buildings is new, it is already a mandatory consultee for developments in the vicinity of high-risk sites. Together with the Environment Agency and the Office for Nuclear Regulation, the executive may also be the statutory consultee for developments subject to the Control of Major Accident Hazards (COMAH) Regulations 1999.
The relationship between LPAs, health and safety regulation and other bodies was recently considered in Valero Logistics UK Ltd v Plymouth City Council [2021] EWHC 1792 (Admin), a case that shows how the different regimes can come into conflict.
Valero operated a COMAH-regulated site and challenged the LPA's grant of planning for a change of use at a neighbouring property from a house with an ancillary helipad to a commercial helipad. The company argued that the LPA had failed to consider the COMAH-related risks from the helipad's operation, and had acted irrationally by relying on the Civil Aviation Authority (CAA) and COMAH regimes to identify and mitigate any risks. But the judge considered that the LPA had understood the risks, and was entitled to decide that the CAA and COMAH could regulate any that were posed by the operation of the development.
It remains to be seen whether the proposed reforms in gateway one and the Building Safety Bill will be sufficiently robust to improve fire safety in buildings, as has been almost universally demanded since the Grenfell Tower fire. However, the respective regimes for planning and health and safety are long established, and the tension between them is – as in Valero – likely to continue to create difficulties for developers and LPAs.
Nick Walker is a partner at Watson Farley & Williams
Contact Nick: Email
Related competencies include: Fire safety, Legal/regulatory compliance
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