The Building Safety Regulator as a planning consultee
At Planning Gateway One the Health and Safety Executive comments on the fire statement as a statutory consultee. Its response is a material consideration, not an approval, and an unanswered adverse response becomes a refusal reason.
Since 1 August 2021 the Health and Safety Executive, acting as the Building Safety Regulator, has been a statutory consultee on planning applications for relevant high-rise residential buildings in England. Its response is a material consideration for the local planning authority, and it is not an approval or a refusal. The Regulator comments on whether the fire statement submitted with the application shows that fire safety matters have been considered at the design stage, and the council then decides what weight that carries in the planning balance. Getting this wrong wastes weeks, because the consultation runs in parallel with the determination period rather than after it.
Where the Regulator sits in the planning process
Planning Gateway One is the first of three gateways created around the Building Safety Act 2022 regime. It sits at the planning application stage and its purpose is narrow: to make sure that fire safety is thought about while the massing, access, layout and site strategy are still capable of being changed.
The Regulator is a consultee, not a decision maker. It has no power to grant or withhold planning permission, and its response does not bind the council. Neither does a supportive response provide any comfort at Gateway Two, which is a separate building control process with a different test.
Practitioners who have worked with National Highways or the Environment Agency will recognise the pattern. The response arrives, the officer weighs it, and an adverse response that is not answered tends to become a refusal reason.
What triggers the consultation
Article 9A of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires a fire statement to accompany an application for planning permission for development involving a relevant building. In broad terms a relevant building contains two or more dwellings or educational accommodation and meets the height condition, which is 18 metres or more in height, or seven or more storeys.
Read the definitions rather than the summary. Height is measured to the floor surface of the top storey, ignoring any storey that is roof-top plant or machinery, and the counting of storeys has its own rules. Schemes that sit a metre either side of the threshold need the measurement documented on a drawing, because an application submitted without a required fire statement can be treated as invalid.
Three practical points follow. Outline applications and applications for approval of reserved matters can engage the requirement. A section 73 application to vary a condition on a permission for a relevant building can engage it too. And material changes during the application, such as adding a storey to make the numbers work, can bring a scheme into the regime part way through.
What the response actually covers
The Fire Statement is submitted on the form published by the Secretary of State, and the Regulator reads it against the design information in the application. Its comments generally cover the same ground each time.
Site access and the space available for fire service vehicles, including hard standing, turning and proximity to the building. Water supplies for firefighting and where the hydrants sit. The principles of the evacuation strategy and how they influence core positions and layout. The relationship between the building and its neighbours. And whether the statement is supported by someone with the necessary fire engineering competence, because a Fire Statement is a document the regime expects to be prepared by a competent professional rather than assembled from a template.
The Regulator is looking for evidence that these matters shaped the scheme. A statement that describes an evacuation strategy without showing how it drove the core layout invites the comment that fire safety was considered after the fact.
How councils treat an adverse response
An adverse response usually takes one of two forms. Either the Regulator says the statement lacks the information needed to comment, or it says the design raises a matter the applicant should address.
Neither is fatal. The council will normally forward the response and invite a reply, and most authorities are content to accept an amended fire statement during the application. What causes trouble is silence. An officer facing an unanswered adverse response from a statutory consultee will either refuse or ask for a lengthy extension of time, and a refusal on that ground is awkward at appeal because the inspector will ask the same questions.
Where the comment goes to a matter of substance, such as the adequacy of fire service access to a constrained urban site, the honest answer is sometimes that the layout has to change. Better to find that out at application stage than at Gateway Two, where the cost of a change is measured in months of programme.
Timing, and what it does to the determination period
The statutory consultation period for consultees under the Development Management Procedure Order is twenty-one days unless a longer period is agreed. On a major application with a thirteen week determination period, that leaves reasonable room. On a scheme where the fire statement needs revising and re-consulting, it does not.
Plan for the sequence rather than the deadline.
- Confirm at feasibility stage whether the scheme meets the height condition, and record the measurement.
- Appoint a fire engineer early enough that the strategy informs the core layout.
- Submit a fire statement that cross-references the drawings by number.
- Expect the consultation to run for at least three weeks from validation.
- Build a contingency for one round of revision and re-consultation into the programme agreed with the council.
Agree an extension of time in writing if the response is late. A council that determines an application without the statutory consultee response exposes the permission to challenge, and no developer wants a permission with that flaw in it.
Responding without redesigning the scheme
Most comments can be answered with information rather than with drawings. Before reaching for the design team, check three things.
Whether the point is already answered somewhere in the submission that the Regulator did not receive, which happens more often than it should where documents are uploaded late. Whether the comment relates to a matter properly dealt with at Gateway Two, in which case the reply is to say so and to explain how the planning stage design does not preclude it. And whether the comment identifies a genuine gap in the strategy.
Where a redesign is needed, keep it proportionate. Moving a fire service access route or widening a hard standing is usually achievable within the approved parameters of an outline scheme. Changing the evacuation strategy is not a planning stage decision to take lightly, and it belongs in the Fire Safety Strategy rather than in a covering letter.
Engaging before you submit
The Regulator publishes guidance on what it expects to see, and reading it before writing the statement is the easiest improvement available. Check the current published position on the HSE website, because the operational arrangements around the gateways have changed since 2021 and continue to develop.
Pre-application engagement with the council on fire matters is worth arranging where the site is constrained, the building is close to the threshold, or the access arrangements depend on third party land. Ask the case officer how they intend to handle the Gateway One consultation and whether they will accept a draft fire statement for comment.
Competence is the last point and the one most often skipped. A fire statement needs an author with fire engineering competence, and PlanScope's professional directory is one route to a reviewer who can take that role on an AI-assisted draft. Under the Building Safety Act 2022 framework and Article 9A, this is a report where qualified professional input is legally required, so the draft is a starting point for that professional and never a substitute for them. See the professional directory for how the review and sign-off route works, and enter your postcode on PlanScope to see which reports your scheme is likely to need.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. For specialist technical reports, qualified professional input may be required. This is general guidance rather than legal advice, so confirm the current position with your local planning authority or a qualified professional before relying on it.
Frequently asked questions
Which applications need a fire statement?
Article 9A of the Development Management Procedure Order 2015 requires one for applications involving a relevant building, broadly a building containing two or more dwellings or educational accommodation that is 18 metres or more in height or has seven or more storeys. Read the definitions carefully, because an application submitted without a required statement can be treated as invalid.
Can the Building Safety Regulator refuse planning permission?
No. The Regulator is a statutory consultee, not a decision maker. Its response is a material consideration that the local planning authority weighs alongside everything else. A supportive response also provides no comfort at Gateway Two, which is a separate building control process applying a different test at a later stage.
How long does the Gateway One consultation take?
The statutory consultation period for consultees under the Development Management Procedure Order is twenty-one days unless a longer period is agreed. Build contingency into the programme for one round of revision and re-consultation, because a revised fire statement generally has to go back out before the officer can conclude the report.
What happens if the Regulator says the statement is inadequate?
The council normally forwards the response and invites a reply. Most authorities accept an amended fire statement during the application. The problem case is an unanswered response, because an officer facing that will either refuse or seek a long extension of time, and the same questions arise again on appeal.
Who can prepare a fire statement?
Someone with the necessary fire engineering competence. The Building Safety Act 2022 framework and Article 9A both proceed on that basis, and the Regulator's comments frequently go to whether the author was competent. An AI-assisted draft can organise the material and structure the form, but a qualified professional has to take responsibility for the content.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.