Agenda item

To consider item 8

The Director of Legal and Governance advised Members that the purpose of this report was to apprise the Authority of a consultation launched by the Welsh Government on 28 July 2020, about its proposals to make the three Welsh fire and rescue authorities statutory consultees on planning applications relating to specified developments; the current position in England in respect of consultation and fire and rescue authorities; and proposals for England contained within the draft Building Safety Bill.

Responsibility for legislation concerning town and country planning; building regulations and fire safety was devolved to the Welsh Government. The Welsh Government’s proposals would require pre-application and post-application consultation with the three Welsh fire and rescue authorities, by developers and planning bodies, for certain types of development. The types of development which would be subject to the requirement to engage with fire and rescue authorities were set out in paragraph 4.15 in the Welsh Government’s document, These would be planning applications for development comprising, waste sites; 10 residential units or more; or of over 0.5 hectare; buildings with floor space of over 1,000 square metres; or sites of 1 hectare or more. The report maps the current legal regime in Wales across to the regime in England.

In England under town and country planning legislation, a Fire and Rescue Authority (FRA) was only a statutory consultee where a proposed development was a ‘Nationally Significant Infrastructure Project’ , such as a power station, fuel storage or a fuel pipeline, transport hub, or highway or railway. However, there was nothing to preclude local planning authorities from adopting local policies under which they could consult fire and rescue authorities about planning applications. Changes to the legislation of the type contemplated in Wales would require the necessary levels of staffing and competency within the FRA to enable it to comply with a duty to provide a “substantive response” within a 21-day period; and require the FRA to publish annual compliance data.

In England, council’s building control services, or approved inspectors, were responsible for checking for compliance with the requirements of Building Regulations. Building Regulations were concerned with building work and with material changes of use (which may give rise to requirements for building work).

The requirements for fire safety would apply to most buildings. Fire safety requirements were set out in Part B of Schedule 1 to the Building Regulations. These cover means of escape, means of early warning, internal and external fire spread, and access and facilities for the fire and rescue service. Ways of meeting the requirements were given in statutory guidance issued in England and separately in Wales as ‘Approved Document B’. At present, FRAs were consulted on applications for Building Regulations approval when required under Approved Document B.

The Welsh Government’s proposals were in response to the Grenfell Fire, however the legislation proposed for Wales was not limited to high rise residential buildings.

In England a different approach had been adopted. On 20 July 2020 the Government published the draft Building Safety Bill. The stated intention of the Bill was to create a more stringent regulatory regime for ‘higher-risk’ residential buildings and was part of the Government’s response to the Independent Review of Building Regulations and Fire Safety, led by Dame Judith Hackitt.

The Bill introduced a ‘Building Safety Regulator’ as a new role to be undertaken by the Health and Safety Executive. The Bill would amend the Building Act 1984 to create a new ‘Gateway’ regime for ‘higher risk buildings’. The Government had signalled its intention that it proposed to define a ‘higher-risk building’ as: A building 1) 18 metres or more above ground level; or in which there were more than 6 storeys above ground level and 2) contains: a) Two or more dwellings; b) Two or more rooms for residential purposes, or c) Student accommodation.

Clause 13 of the Bill enabled the Building Safety Regulator to call on assistance from local authorities and FRAs when regulating higher-risk buildings.

Clause 14 places a duty on FRAs and local authorities to only use staff with the ‘appropriate skills, knowledge, experience and behaviours’ when supporting the Building Safety Regulator.

The Bill intends to introduce a Gateway process for applications to construct ‘higher-risk buildings’. The first Gateway was the ‘Planning Gateway’ under which those applying for planning permission would need to submit to the Local Planning Authority, with the planning application, information that demonstrates fire safety requirements had been considered at an early stage and incorporated into the proposals.

The Building Safety Regulator would become a new statutory consultee to provide specialist fire safety input on the proposals to assist the Local Planning Authority in their decision-making process. However, where a planning application was not currently required (i.e. it was permitted development under the General Permitted Development Order), the requirements of the Planning Gateway would not apply, and development proposals would proceed straight to Gateway two.

The Bill proposed that Gateway two occurred prior to construction work beginning. It was intended to bolster the current building control ‘deposit of full plans’ stage.

Gateway two was intended to provide a ‘hard stop’ where construction cannot begin until the Building Safety Regulator was satisfied that the building’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations. At either or both Gateway 1 and 2 the Building Safety Regulator could request, or direct, a FRA to provide its employees to give assistance and support.

The Group Commander Protection advised Members that the National Fire Chiefs Council (NFCC) had produced and reviewed the National Competency Framework for Fire Regulators and consultations fall under the top tier of that qualification. The aspiration was that only those with the highest level of training, which was a Level 4 Diploma and external accreditation with an organisation such as the Institute of Fire Engineers. One of the challenges for the future was maintaining competency skills and knowledge and accreditation and that would be a significant challenge to all fire services.

With regard to the actual consultations, the Authority is consulted on five categories. One of the first categories was under the Licencing Act 2003, where the Authority received regular applications. The Authority was also a consultee on weddings and civil partnerships, new premises and clubs and minor variations.

The Authority works closely with the local authority on houses of multiple occupation consultations under the Building Act 1984 and the Building Regulations 2010.

The Authority works with the water authorities under the Water Industry Act 1991 regarding plans for any significant new developments and also gets the opportunity to state requirements for water supplies.

Under the Town and Country Planning Act 1990, the Authority was a non-statutory consultee and responded where it could on significant developments.

The main work stream and biggest workload for staff was around building regulations consultations, working under the Building Act 1984 and the Building Regulations 2010. The Authority generally processed around 1200 consultations a year.

Under consultations the Authority got to comment on means of escape, emergency and safety lighting, access and facilities for the fire service, notice and signs and fire alarms and detection. One of the biggest challenges at this point was that the Authority was not the enforcing authority, but a consultee. The first opportunity to actually work under the regulations was once the development had been built and was occupied, then the premises can be inspected to ensure they have actually complied with all of the regulations and stipulations.

A Member asked if England was to replicate the Welsh government’s forward-thinking legislation what would be the cost to the Authority and did the Authority have the resilience to do it.

The Group Commander Protection advised that capacity and growth would be a challenge, but the Authority was monitoring it. The opportunity to be involved in the planning and consultation at the early stages could actually reduce the demand on the team at later stages. If the powers were a little stronger, and there was a stop point whereby they couldn’t commence until it was compliant, this could actually reduce some of the demands in future. The Authority had over the last two years approved additional funding for the protection teams. There had been a slight delay in fulfilling some of those posts due to restrictions on recruitment and training, but the process had now started.

A Member asked a question regarding a situation relating to two properties ‘The Gables’ and ‘Mellish Court’ in Milton Keynes. “Following a recently completed safety audit report for both properties were the dangers and/or risk levels highlighted in the report sufficient that you would advise residents to be rehoused from both premises at the earliest opportunity.”

The Group Commander Protection advised that the Service, as the Regulating Authority for the Fire Safety Order, had been working hard with Milton Keynes Council (as the Responsible Person for the premises) for maintaining the safety of the building. In-depth audits had been carried out, following the NFCC’s framework, and part of the Enforcement Management Model included significant interim measures being put in place by the Responsible Person. Any risk assessment undertaken would be expected to take into account any control measures put in place. The measure introduced at the two sites were interim measures, and they would be required to be reviewed on a regular basis by the Responsible Person. The Protection Team for the Service would continue to liaise and monitor those situations and circumstances and keep it under review.

The Chief Fire Officer advised that the Service employed a range of interventions for the enforcement of fire safety legislation. These interventions range from informal action, which can include notices suggesting fire safety measures, to formal action which can include prohibition of the premises and/or prosecution of the Responsible Person. When enforcing these regulations, the Service would employ these actions, and does so on a regular basis. The Responsible Person had responsibility for the implementation of any fire risk assessment and this issue would be kept under constant review.

The Member also asked that the Chief Fire Officer updated Members of the Authority on a regular basis as and when actions were required to be taken/or were planned to be taken as was fitting of those actions that can be released in the public domain and to ensure that the Chairman and Vice Chairman receive regular briefings, as this was a very important topic in Milton Keynes.

The Chief Fire Officer advised Members that even if the responsible person was a local authority or business owner in the community, all would be treated in the same way. The Service had a track record of enforcement though informal action and it also had a track record of enforcement through prosecution and that was a matter for public record.

A Member asked where the Grenfell Inquiry had reached and also what effect it would have on this and was advised that the Grenfell incident had been the genesis for a great deal of change, not just operationally but also in terms of fire safety legislation. The Grenfell phase 1 enquiry had concluded and phase 2 was underway and the Authority continued to take an active part through the NFCC and other stakeholders and partners shaping it’s response which had been submitted to the Home Office in relation to the fire safety part of the consultation.

RESOLVED –

(Recommendation 2 having been proposed and seconded to be amended to include the text ‘becoming statutory consultees to the local planning authorities in the development management process’ in place of ‘becoming consultees in the development management process’)

1.     The content of the Welsh Government Consultation Document (Annex A) be noted; and

2.     The Chief Fire Officer be authorised, after consultation with the Group Leaders and Vice Chairman, to submit the views of the Group Leaders about fire and rescue authorities becoming statutory consultees to the local planning authorities in the development management process to:

a)   The Minister of State for Building Safety, Fire and Communities; and

b)   the LGA Fire Services Management Committee.