High-rise residential development & fire safety: the new ‘planning’ requirements

The year after the Great Fire of London, in 1667, some of the first ever ‘Building Regulations’ were made. In our own times, the fire at the Grenfell Tower (14 June 2017) brought fire safety for the built environment to the forefront for legislators and policymakers once again. COVID-19 has intervened, but new law and policy for preventing fire and mitigating risk to residents of higher buildings, is now starting to be published.  

The independent review into the Grenfell Tower tragedy was largely focussed on the effectiveness of non-planning regimes – including the modern ‘building regulations’. New legislation is in the pipeline and the Building Safety Bill, published by the Government on 5 July 2021, is covered separately in a separate Gateley article called Building Safety Bill, 05 July 2021: key provisions and how they affect residential developers.

The recommendations of the review, however, have also recognised that it is in fact the planning system which is often the first opportunity for public scrutiny of a proposed building, the materials from which it is constructed, and its relationship with the environment around it. That realisation is expressed through the concept “Planning Gateway 1” for which legislation and policy guidance has now been made. 

The Town and Country Planning (Development Management Procedure and section 62A Applications) (England) (Amendment) Order 2021 (the Amendment Order) has been the main vehicle for creating the “gateway”, a set of procedural reforms aimed at ensuring that fire safety is given due consideration as early as practicable when it comes to determining planning applications for all relevant buildings throughout England. It is complemented by some adjustments to the General Permitted Development Order 2015 which have been made through the Town and Country Planning (General Permitted Development etc) (England) (Amendment) (No 2) Order 2021.

The reforms effected by these orders came into effect on 1 August 2021.

What are the types of development for which a Fire Statement must be submitted? 

With effect from 1 August 2021, any application for full planning permission to construct a new building (or to change the use of an existing building) in England, which will result in a building which both: 

• contains (i) two or more dwellings; or (ii) educational accommodation (i.e. living accommodation for students); and
• is either 18m or more in height, or 7 or more storeys in height 

will be an application resulting in a “relevant building” - and will require a Fire Statement accordingly. (A planning application for a relevant building will not be valid without a Fire Statement).

An application for outline planning permission or an application under section 73 of the Town and Country Planning Act 1990 to carry out the development without compliance with one or more planning conditions on a previous planning permission, will not require a Fire Statement.

The Amendment Order uses the expression “educational accommodation”, but it defines this as “residential accommodation for the use of students attending higher education courses, further education courses or courses at 16 to 19 Academies”.

Some information is given in the online national practice guidance (PPG) as to how to apply the building height requirement.

A Fire Statement will also be required for any development within the curtilage of a ‘relevant building’ defined as above (but there is an exemption for in-curtilage development consisting of a change of use as long as that change does not itself result in a “relevant building”.) 

What about “Prior Approval” Applications? 

The General Permitted Development Order 2015 (as amended) (the 2015 Order) allows for the conversion of existing buildings into residential accommodation in defined circumstances. 

Class MA of Part 3 in Schedule 2 to the 2015 Order authorises development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class E (commercial, business and service) to a use falling within Use Class C3 (dwelling houses). Class A of Part 20 in Schedule 2 to the 2015 Order authorises the addition of one or two storeys of residential accommodation onto pre-existing detached blocks of flats and Class AA of Part 20 authorises the addition of one or two storeys.

Each of these ‘permitted development rights’ is subject to various limitations and conditions, including the requirement for “prior approval” from the local planning authority.

As part of that, developers are now required with effect from 1 August 2021 to also provide to the local planning authority a statement about the fire safety design principles, concepts and standards that have been applied to the development where the resulting building will be a relevant building as discussed above.

The local planning authority must consult the HSE when it receives a ‘prior approval’ application for a ‘relevant building’.

What information must be provided in a Fire Statement? 

The Government has published online a template for a Fire Statement which can be downloaded by applicants, architects or planning professionals. Fire Statements will support the consideration of information on fire safety matters as they relate to land use planning matters (e.g. site layout, water supplies for firefighting purposes and access for fire appliances). The template suggests that concise and proportionate information would be provided to demonstrate that fire safety matters, insofar as they relate to planning (rather than the building regulations or other regulatory regimes), have been duly incorporated into the planning application.

Given, however, the potential scope for future litigation with a long-time horizon between occupiers of residential buildings and builders/developers which the proposals in the current Building Safety Bill contain, developers are likely to want every item of future evidence respecting their approach towards fire safety to be as robust and professional as is reasonably practicable. A strongly worded Fire Statement demonstrating a commitment and attention to detail respecting fire safety matters from the outset would not only help to reassure the elected members of a local planning authority respecting a proposed development, but also provide a valuable evidential document for the future if allegations about the developer’s approach towards fire safety were to feature in any future litigation in years to come. 

When must the Health and Safety Executive be consulted? 

The PPG suggests that developers may choose to consult the HSE about future applications for relevant buildings. The HSE website acknowledges this possibility, although it warns developers that “We do not carry out a full assessment of the fire statement before you submit it with your planning application”.  

The local planning authority will be required to consult the HSE before granting planning permission for a development that will result in one or more such ‘relevant buildings’.