Following the Grenfell Tower tragedy, the public inquiry established by the government identified a particular type of cladding as being a major factor in the spread of the fire. That cladding is known as aluminium composite material (ACM) cladding. Further tests carried out by the Building Research Establishment established that certain types of ACM cladding combined with certain types of insulation were unsafe.
Since those tests in July and August 2017, there has been a concerted effort to remove ACM cladding from residential buildings over 18m tall, including public and private sector dwellings and student accommodation. This included amendments to building regulations to prevent ACM cladding from being installed on new qualifying buildings, while also requiring it to be removed from existing qualifying buildings when certain building works were done. In both scenarios, the amended building regulations also imposed much higher standards on the type and combustibility of the replacement cladding.
In addition to the change in building regulations, the government issued numerous guidance and advice notes to landowners on how they should identify the existence of ACM cladding, that waking watches should be undertaken to reduce the risk of fire and to undertake remedial works to remove ACM cladding. Additional guidance notes also warned that other types of cladding may pose a fire hazard, including metal composite material (MCM) and high pressure laminate (HPL) cladding. The government advised that certain types of HPL cladding should also be removed. However, the removal of ACM cladding should be the “absolute priority of focus”.
The continued risk of high-rise building fires and its possible connection to unsafe cladding was further emphasised with the Barking Riverside Estate fire in June 2019 and the Bolton student accommodation fire in November 2019.
Remediation issues
Given the scale and costs for landowners to remove ACM cladding, the government set up the Private Sector ACM Cladding Remediation Fund. The purpose of the fund was to cover private landowners’ costs of removing ACM cladding and to ensure that those costs were not passed on to residents via service charge provisions. The deadline for applications to this fund expired on 31 December 2019.
Having advised a number of clients on cladding-related issues and provided legal representation during the public inquiry, we encountered numerous issues and problems in 2019 as a result of the aforementioned developments. These included the changing duties of landowners based on the type(s) of cladding present, the extent to which waking watches were needed during remediation works, there being no building regulation-compliant material available to replace ACM cladding and the implications for landowners of residential buildings less than 18m and those of high-rise commercial buildings or any other building which potentially contained unsafe cladding (for example, hotels and stadiums).
Other issues
The issues we encountered also raise important legal questions for which there are not necessarily easy answers. These include:
- whether cladding forms part of the building, premises or common parts;
- to whom does liability fall where a repair obligation does not contain an obligation to make safe;
- the relationship between repairing obligations and those necessary to comply with statute and building regulations;
- the conflict between landlord and tenant repairing obligations in light of Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC); [2019] PLSCS 30;
- whether cladding should be treated as an inherent defect and the effect that this may have on service charge recovery;
- the risks and great costs associated with service charge and consultation processes which a landlord must navigate to undertake such remedial works;
- the inherent delays associated with that process and the potential increased risk of claims being brought by tenants for losses suffered;
- whether those risks increase a landlord’s prospect of successfully applying for dispensation; and, importantly,
- the precarious balancing act in Timothy Taylor Ltd v Mayfair House Corporation [2016] EWHC 1075 (Ch); [2016] PLSCS 136 between a tenant’s right to quiet enjoyment and a landlord’s right to carry out works.
The difficulties experienced by our clients in 2019 are not isolated events. The 26th Building Safety Programme publication from gov.uk (dated 16 January 2020) confirms there is still a lot of work to do before ACM cladding is removed from qualifying buildings. A total of 315 buildings have yet to remove ACM cladding and a further 24 buildings have yet to confirm if ACM cladding is present. Of those 315 buildings, 13 social sector and 68 private sector buildings have a remediation plan in place, but works have not yet started. A further 75 private sector buildings have confirmed an intent to remediate and are developing plans.
It is clear that, since the Grenfell Tower tragedy, a lot has been done to improve the fire safety of qualifying buildings. Having said that, there is still a lot of uncertainty surrounding the safety of cladding, which not only raises further questions, but also suggests that 2020 will be a busy year for landowners. The next Building Safety Programme publication is due on 13 February 2020 and, as we expect many high-rise residential buildings still contain ACM cladding, government pressure to address this will only intensify. Furthermore, high-rise residential buildings only represent one area of the wider real estate sector in the UK and other areas, such as non-high-rise residential buildings and certain commercial buildings, could soon be caught. This is in addition to ongoing investigations into other types of cladding which may soon be deemed unsafe.
The year ahead
2020 is likely to be a year in which landowners of qualifying buildings will have to decide how they are going to remove ACM cladding, how they are going to pay for these works and whether they can or will pass all or some of those costs on to residents. Those landowners are also going to have to keep an eye out for further regulatory changes regarding other types of cladding and may expect to receive an increased number of complaints or claims from disgruntled residents. It is also a year in which landowners of other types of buildings may unexpectedly be caught by cladding changes and be confronted with significant expenditure.
To emphasise this, the secretary of state for housing, communities and local government, Robert Jenrick, confirmed on 21 January 2020 that the government would soon be “naming and shaming” landowners of qualifying buildings who had not removed ACM cladding. A new building safety regulator was also announced, with the Local Government Association’s building safety spokesman Lord Porter saying “the height of a building does not provide any indication about the risk to its safety, as has been proven by recent dangerous fires in buildings below 18m” and “ACM is not the only cladding system that poses a risk to residents and the government needs to come forward urgently with funding to support the removal of HPL and other dangerous systems”.
Even more recently, Sky News reported on 26 January 2020 that the “deputy chief fire officer of West Yorkshire Fire & Rescue Service has written to people living in 13 tower blocks in Leeds, Bradford and Huddersfield warning that he could close the entire building, or parts of it, unless they have firm plans to remove combustible cladding”.
Sky News also confirmed that one of those buildings, namely St George’s Building in central Leeds, has HPL cladding and was “one of the tower blocks to receive Mr Walton’s ultimatum”.
The issues arising out of cladding are set to continue and/or intensify in 2020. Both landowners and practitioners alike would do well to pay very close attention to this rapidly evolving area.
Bryan Johnston is a partner and Ross Wilson is an associate at Dentons
