Upcoming building safety deadlines – RPDT consultation and Planning Gateway One

The post below was first published on our Real Estate blog

Back in April, we wrote about a consultation on a new proposed tax on residential property developers, the Residential Property Developer Tax (RPDT). This consultation closes on 22 July 2021, so there is still time to respond. Developers of certain types of high-rise residential buildings (including educational accommodation) also need to be aware of the requirement which will take effect from 1 August 2021 for a fire statement to be submitted with certain types of planning applications pursuant to the new Planning Gateway One. Both the RPDT and Planning Gateway One contribute towards a raft of building safety measures being introduced to implement recommendations of the Independent Review of Building Regulations (known as the Hackitt Review). What is their purpose, and how will they impact developers?

The RPDT - Funding the remediation of unsafe cladding

On 10 February 2021, the Housing Secretary, Robert Jenrick, announced a "5 point plan" to "bring to an end unsafe cladding", which included payment by the government for the removal of all unsafe cladding for leaseholders in all residential buildings 18 metres and over in England. For buildings between 11 and 18 metres, the government will make available a long-term, low interest financing arrangement which will be funded by:

• a new levy, to be imposed on developers at Gateway Two (the Gateway Two levy) but that will apply "when developers seek permission to develop certain high-rise buildings in England"; and
• a new tax on the UK residential property sector; the RPDT.

Details of the new Gateway Two levy are awaited. However, on 29 April 2021, HM Treasury announced the consultation on the RPDT, which will close on 22 July 2021. The consultation notes that the rate of the RPDT is expected to be announced at a future fiscal event.

As mentioned, our Tax team wrote a blog post on the implications of the proposed RPDT. For further information, please contact us.

Planning Gateway One

Planning Gateway One is the first of three new "Gateways" which are being introduced in connection with the Building Safety Bill, which was introduced to Parliament on 5 July 2021. The Gateways policy is actually not being introduced by the Bill itself, but is instead described by the Explanatory Notes to the Bill and will come into effect separately through secondary legislation. Planning Gateway One is being introduced first and will come into effect from 1 August 2021, substantially ahead of the rest of the requirements of the Bill.

What will Planning Gateway One involve?

In short, it will introduce a new requirement for developers to prepare and submit fire safety information in the form of a fire statement when submitting certain applications for planning permission ("relevant applications") for certain high-rise residential buildings (including educational accommodation such as student halls). Also, from 1 August 2021, the Health and Safety Executive (HSE) (which will become the Building Safety Regulator when the Building Safety Bill is enacted) will also be a statutory consultee.

Which planning applications are caught?

A relevant application is one that relates to the provision of one or more "relevant buildings", or development of an existing relevant building, or development within the curtilage of an existing relevant building. A relevant building is one that both:

• 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
• meets the "height condition", namely its height is (i) at least 18 metres tall or (ii) at least 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. Also, a fire statement is not required for an application to vary conditions pursuant to section 73 of the Town and Country Planning Act 1990, nor for outline planning applications, although it is not clear why a fire statement should not be required with submission of an application for reserved matters approval.

Is a specific form of fire statement needed?

Some local planning authorities already require a fire statement to be submitted with certain types of planning applications, for example fire statements must be submitted with all major development proposals in London, produced by a "third-party independent, suitably-qualified assessor" (see Policy D12 (Fire safety) of the London Plan 2021). However, a fire statement for the purposes of Planning Gateway One must be submitted on a form published by the Secretary of State or a form to similar effect. The government published the draft form of fire statement at Annex C to the Planning Gateway One guidance. Draft fire statement guidance was also published as Annex D of the Planning Gateway One guidance, which provides further detail on how to complete the form and what information is needed. Depending on the requirements of individual planning authorities, it may be necessary to submit two forms of fire statement to comply with the requirements of Planning Gateway One and individual development plans.

It is also worth noting that, 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.

What about PD rights?

The Planning Gateway One requirements apply only to planning applications, which means that development through permitted development (PD) rights is not caught. However, on 7 July 2021 the Town and Country Planning (General Permitted Development etc) (England) (Amendment) (No 2) Order 2021 (SI 2021/814) was made, introducing a fire safety prior approval requirement for residential accommodation created pursuant to PD rights which fall within the scope of Planning Gateway One. This could potentially have a significant impact on the take-up of residential PD rights.

What next?

The Planning Gateway One requirements will come into effect on 1 August 2021. Secondary legislation to implement Gateways Two and Three will be brought into force in due course, at which point some of the definitions which currently apply to Planning Gateway One may change to ensure consistency between the Gateways.

As regards funding the remediation of unsafe cladding, the date on which the RPDT will come into force is yet to be announced, and we still await details of the proposed Gateway Two levy. However, the government's estimate is that the Gateway Two levy will not come into effect until 12 to 18 months following Royal Assent of the Building Safety Act, which isn't expected before April 2022.

We have prepared a more detailed briefing on the requirements of Planning Gateway One, and are also preparing separate briefings on the impact on developers, owners and investors of the remaining provisions of the new regime being introduced by the Building Safety Bill and the associated legislation and guidance. Please contact us if you would like to receive a copy of any of these briefings.

For further information please contact: