In late October 2023, developers, lenders and insurers welcomed the government’s announcement of the transitional arrangements that will be put in place for the installation of second staircases in new high-rise residential buildings over 18m.
This was a particularly significant development given the uncertainty and disruption that the proposals have caused in bringing development schemes forward. While the focus across the industry remains on making the built environment as safe as it can be, second staircases have caused debate since the government first consulted on the requirement in late December 2022. The spotlight was on the requirements again in July last year when the initially proposed threshold to capture new high-rise residential buildings over 30m was lowered to 18m, as recommended by the National Fire Chiefs Council.
The government has not yet stated when it intends to update Approved Document B – the mechanism by which these arrangements will be, in practice, brought into effect – and publish the design details that the market will be required to align with in ensuring compliance. However, once the amendment does come into effect, and now the government has given clarity on the transitional arrangements, the focus will be firmly on the residential industry to get this right.
How long is the transition period?
Initially, the government proposed “… a very short transition period before implementing the changes”, noting that it “… should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect.” However, it is evident the government has changed tack on this.
Consequently, developers will have 30 months from the date on which the government formally publishes and confirms the changes to Approved Document B before they are required to install a second staircase into buildings that are 18m or taller. When the 30-month period has elapsed, all applications will need to adhere to the new Approved Document B, meaning second staircases will become mandatory. Those who have already obtained building regulation approval will have a shorter period of 18 months before they are required to install a second staircase.
The real question mark is whether or not developers will proceed with the construction of previously consented single-staircase schemes during the transitional period. Even once the new Approved Document B is published and the 30-month period begins to run, many developers will be nervous about the consequences of not delivering schemes with second staircases, notwithstanding that it will be lawful to do so and especially given the fact the government is, in reality, saying this is the safest course of action for new buildings. This is, in turn, having significant implications on the cost and delivery of some schemes and we are already seeing developers coming under increasing pressure from lenders and investors to revisit their schemes for the reason that they are not prepared to accept the reputational risk that installing a single staircase seemingly brings.
“Construction… in earnest”
As was to be expected, there has been considerable focus on the trigger for determining whether a developer will be required to comply with the updated requirements in circumstances where building regulation approval has been obtained but works on site have yet to get off the ground. The government has provided much-needed clarity on this particular point, confirming that for “… construction to get under way in earnest…” or “… be regarded as sufficiently progressed…” this will require “… the pouring of concrete for either the permanent placement of trench, pad or raft foundations or for the permanent placement of piling has started…” or in respect of works or a material change of use to an existing building, when this has commenced.
Could it be back to the drawing board?
It goes without saying that the announcement will be little consolation for those developers whose schemes are stuck in the planning application process, which can take several years to navigate.
For those who decided not to pre-emptively amend their schemes on the understanding that their schemes were less than the originally proposed 30m height threshold, thought that they could obtain the necessary approvals in time, or have obtained them but will be unable to satisfy the requirement “for construction to get under way in earnest” in the proposed timescales, it will be back to the drawing board. This is likely to necessitate further discussions with the local planning authority to accommodate resulting changes to floorspace or viability, incurring costs and delay at a time when construction costs remain high and the need to deliver schemes and pay down debt is more pressing than ever. In our view, this will require stronger guidance to be put in place to encourage local planning authorities to adopt a sensible and pragmatic approach when they are undoubtedly faced with amendment applications.
It will take time for the dust to settle, and the lasting impact of the new guidance remains to be seen. However, it is not inconceivable that there will be a significant shift to low-rise building at a time when high-density living is being touted as one of the many sticking plasters to fix the “housing crisis”.
Rory Bennett is head of UK planning at Linklaters
