Building Safety Regime – proposals for Gateway One

In response to the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt, and the Government's consultation on the recommendations set out in Dame Hackitt's report, the Government published the draft Building Safety Bill in July 2020. The Building Safety Bill is now set to be introduced to Parliament for debate in the next Parliamentary session. 

Under the Building Safety Bill a new Building Safety Regime for high-rise, multi-occupancy residential buildings is to be established that includes, amongst other things, a three stage gateway process that must be satisfied before such buildings can be occupied. In summary, the three stages of the gateway process are:

• Gateway One (Planning) - the planning application for any relevant development to demonstrate that the scheme incorporates an appropriate fire safety strategy.
• Gateway Two (Building Control) - the deposit of plans with the new Building Safety Regulator demonstrating that the design meets the functional requirements of the Building Regulations and does not contain any unrealistic fire safety management expectations. This includes a hard stop on any construction activity until the Building Safety Regulator has approved the building control application. 
• Gateway Three (Completion) - a hard stop on occupation of the development until the Building Safety Regulator has undertaken a final inspection of the development and issued a completion certificate.

The Government has now published a draft Statutory Instrument setting out proposed amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 that are intended to implement Gateway One (Planning) of the new gateway process. The proposed changes will require:

• the Health and Safety Executive (as the Building Safety Regulator) to be consulted before any planning permission is granted in respect of a development which involves, or is likely to involve, the development of a high-rise residential building; and
• the relevant planning application to include a fire statement demonstrating that the applicant has considered relevant fire safety issues (e.g. site layout, water supplies for firefighting purposes, access for fire appliances etc.). 

Considering the application of the draft Statutory Instrument it is worth noting 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. 

While it was always intended that the provisions of the Building Safety Bill would be gradually extended to existing relevant buildings, it was not clear from the draft Building Safety Bill how and when the new Building Safety Regime would be phased in. The draft Statutory Instrument appears to clarify that, in terms of the Gateway process at least, these will apply from the outset.

It is also worthwhile noting that, for the purposes of the draft Statutory Building, a relevant building is a building which is 18 metres or more in height and which contains two or more dwellings or educational accommodation. 

This is broadly in line with the provisions of the draft Building Safety Bill. However, as noted within the Government's explanatory notes, this definition will need to be kept under review to ensure consistency with the Building Safety Bill. Under the Building Safety 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 Building Safety Bill will be expanded to encompass more building classes in due course.

It is intended that, subject to Parliamentary scrutiny, the new Statutory Instrument will take effect from 1 August 2021.