The government announced on 24 July 2023 that all new residential buildings in England over 18 metres will require a second staircase rather than the 30 metre threshold previously proposed. The Secretary of State, Michael Gove, said that this announcement will provide "much needed clarity" and that "of course there will be arrangements in place to make sure that there is no disruption to housing supply". While awaiting further clarity, we consider here more specifically the potential impacts of the proposals on the building regulations' sister regime: the planning system. 

What's the background?

The driving policy behind the proposal for a second staircase is the need to ensure access for fire-fighters to, and escape for residents from, tall residential towers. The second staircase would also provide a second means of escape if one route is filled with smoke.

The fire safety imperative is seen in the National Fire Chiefs Council's statement that "a correctly designed second staircase removes the risk of a single point of failure, buying critical time for fire-fighting activities, and providing residents with multiple escape routes." There are also other policy considerations at play such as independent access/egress for disabled users and increasing a building's resilience to extreme weather events.

The government had been suggesting that the new threshold for a second staircase would be 30 metres in its consultation although many organisations in the built environment sector, such as the RIBA, RICS, Chartered Institute of Building, fire safety (National Fire Chiefs Council) and disability and inclusion groups had been calling for a height threshold of 18 metres so as to align with the new regulatory environment for higher-risk buildings under the Building Safety Act. Early moves in the planning system, however, had opted for the 30-metre height threshold to begin with.

What is the impact on pending planning applications?

While the mandated detailed changes to the building regulations and transitional arrangements remain to be seen, the consultation suggested "a very short transition" and that any transition period would allow for schemes to be completed but "should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect." The recent announcement from DLUC on 24 July 2023 is that they will "work rapidly with industry and regulators over the summer to design transitional arrangements with the aim of securing the viability of projects which are already underway, avoiding delays where there are other more appropriate mitigations". Applicants for planning permission for residential towers should therefore consider including second stair cores in the proposed plans during the determination process and before a planning decision is issued. 

As we reported previously, preparation for a proposed 30 metre threshold had seen the Mayor of London and the Greater London Authority leading the charge through its planning processes for tall buildings even when the outcome of the consultation was still pending. The Greater London Authority currently requires all planning applications which involve residential buildings over 30 metres in height be designed to provide two staircases before Stage 2 referral to the Mayor, and is working with London Boroughs on schemes currently in the pipeline to ensure two staircases are incorporated.

We have seen this play out more widely during the planning application consultation process and the work done by the Health and Safety Executive (HSE) as a statutory consultee. The HSE is a statutory consultee for planning applications that include a high-rise residential building above 18 metres in England, and since August 2021, HSE's Planning Gateway One team has been reviewing development proposals and providing comment on fire safety. The majority of Planning Gateway One's concerns raised were over single staircases in tall residential buildings where they represent the only means of escape for residents on upper storeys and the only access for firefighters. Further, single staircases posing risks for firefighter safety is also being routinely raised as a concern, with Planning Gateway One noting the maximum distance a firefighter can safely be expected to travel to get to a fire in a building is indeed 30 metres. Second stair cores are therefore being encouraged at an early stage of a building's lifecycle, and well ahead of the building control stage.

What is the impact on development which has planning permission for a single staircase scheme but has not yet received building control approval?

Planning and building control, while similar, are separate regimes and often run in succession. Planning applications are usually determined first, followed by building control applications. As such, there will be schemes which have obtained planning permission with a single staircase but will not yet be under construction when (and if) the changes to the building control regime come into effect. Unless the outcome of the consultation provides an exemption for such "limbo" schemes, building control approval may not be given to such single staircase schemes even though they have planning permission. So, where would that leave these schemes?

Planning permissions are almost universally granted subject to conditions requiring the scheme to be built out in accordance with the approved plans. Failure to comply with such conditions would be a breach of planning control. A second staircase cannot therefore simply be provided in a scheme for the purposes of obtaining building regulations approval, where the scheme has obtained planning permission for a single staircase only. In such circumstances, designs will need to be revised and planning may need to be applied for anew. Depending on the materiality of the design changes required to accommodate a second staircase, this would be done either through an application for:

• a non-material amendment (pursuant to s96A of the Town and Country Planning Act 1990 (as amended)) 
• a minor material amendment (pursuant to s73 of the Town and Country Planning Act 1990 (as amended)), or
• an entirely new planning permission. 

Whilst paragraph 52 of the consultation does not detail how a staircase should be designed, it is clear that the two staircases will need to be separated in some manner. Practically, this will mean either a reduction in residential floorspace or bulkier buildings. The extent and impact of these changes will affect what planning route is chosen for any revised scheme. Under any route, going through a planning process again may put schemes at risk, as they would be vulnerable to changes in wider planning policy, which could result in extensive negotiations with local authorities, further determination delays, and even a risk of refusal. This risk increases along the spectrum from a non-material amendment to a new planning permission.

Further, the increased costs associated with providing a second staircase will have scheme viability implications. In situations where the redesign of the scheme results in a reduction in saleable floorspace these implications will be compounded. This may in turn affect affordable housing provision, given that almost all residential developments are expected to deliver or fund affordable housing subject to viability testing. In addition to the costs involved in re-designing and re-submitting such schemes, there may also be cost implications if the development was liable for community infrastructure levy (CIL) and a s73 application or new application is required, as changes in chargeable floor space or increases in CIL rates could result in revised CIL liability. 

All will be revealed…

Overall and as is usual with such consultations, the devil will be in the detail. In any event, developers with an unimplemented planning permission for a single staircase residential tower or who are in the process of progressing a single staircase residential tower planning application will need to weigh up their options. Although the announcement of the 18 metre threshold has provided certainty as to the height threshold, until the transitional arrangements are known, a lack of clarity remains.