In the two years since the Grenfell tragedy, issues of fire safety and use of exterior cladding have been high on the agenda for the property industry.
In the immediate aftermath of Grenfell, the government wrote to all local authority and housing association landlords requiring them to identify and submit for testing any aluminium composite material (ACM) cladding panels on residential buildings over 18m in height.
This was quickly followed by a similar communication to private landlords.
The initial testing programme involved undertaking screening tests based on sample materials to establish whether the filler material used in the cladding was of “limited combustibility” (see box, opposite page).
The initial results were startling – by 31 August 2017, 294 samples had been tested and none were considered to be of limited combustibility.
Test results
Unsurprisingly, this led to concerns over the testing methodology itself. By this point, the government had established an independent expert advisory panel to advise on the testing programme. On the panel’s recommendation, a new approach to testing was rolled out.
Rather than simply testing the filler material in isolation, large-scale testing would be undertaken in respect of six (ultimately seven) common ACM cladding systems – involving different types of ACM with different filler material, in combination with different insulating materials.
The panel published the consolidated outcome of its testing programme in February 2018. The results in summary were that (in respect of buildings of 18m or taller):
- Category 1 ACM (ACM with a limited combustibility filler) was safe to use where properly installed.
- Category 2 ACM (ACM with a fire-retardant filler) could be safe where used with a non-combustible insulation but this was dependent on a number of variables.
- Category 3 ACM (ACM with an unmodified polyethylene filler) presented a hazard when used with any type of insulation.
The panel’s advice made clear that it was the responsibility of building owners to take their own independent advice to establish whether their particular cladding systems were safe. However, while the government has made clear that building owners must act, it has not legislated to require this and there has, inevitably, been confusion as to whether remedial works are required and, if so, who should fund those works.
Are remedial works required?
A building owner may think they could be comfortable if the building has received Building Regulations approval but this is also less straightforward than it sounds.
First, merely having a building control certificate is not conclusive evidence of compliance with Building Regulations. More fundamentally, however, there has been confusion over how compliance with Building Regulations is to be assessed.
Unsurprisingly, building owners whose cladding systems are now judged to be unsafe have questioned how those systems obtained building control sign-off in the first place. The basic requirement set out in the Building Regulations 2010 is that “the external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building”.
Paragraph 12.6 of Approved Document B (ADB) went on to state that insulation products, including filler material, used on buildings of 18m or taller must be of limited combustibility. However, there has been a difference of opinion in the industry as to whether ACM is an insulation product or filler material for these purposes.
The government is adamant that it is an insulation product and has recently (12 July 2019) amended paragraph 12.6 to spell this out. Further potential for confusion arises from the fact that ADB itself constitutes guidance rather than mandatory requirements.
Routes to compliance
The Building Control Alliance has traditionally recognised four routes to achieving compliance:
- Compliance with section 12 of ADB (including insulation/filler of limited combustibility).
- Compliance with BS8414 based on test data.
- Compliance based on a desktop assessment.
- A fire-engineered “holistic” approach.
The outcome of this is that a significant number of high-rise residential buildings may have been certified as complying with Building Regulations either as a result of a misapplication of paragraph 12 of ADB or via a desktop assessment or fire-engineered approach, notwithstanding that the cladding system used may not have been of limited combustibility.
In response to widespread criticism of the existing regime, the government appointed Dame Judith Hackitt to undertake a comprehensive independent review of Building Regulations and fire safety. Her final report, delivered in May 2018, advocated a complete overhaul of the existing system. It said a new regime should be modelled around a risk-based outcomes approach with much clearer lines of responsibility and accountability.
Who pays?
Where cladding systems are not of limited combustibility and remedial works are required, the inevitable question is who should pay for those works?
The government’s seemingly straightforward position is that the “building owner” should pay and should not look to pass costs on to leaseholders.
However, it has not legislated to mandate this. Moreover, this proposition arguably fails to reflect reality. For example, consider a block of flats where all of the flats have been sold off on 999-year leases. The landlord under those leases may be the “building owner” but it no longer has any commercial interest in the building beyond perhaps a small ground rent. Furthermore, it may simply not have the funds to undertake major remedial works unless these can be collected from the leaseholders under the service charge.
Many developers have publicly committed to funding remedial works and, in other cases, recourse may be available via contractor’s warranties or new-build guarantees. However, this still leaves a large number of cases in which there is no obvious or willing paying party. As a result, this has led to a plethora of cases going to the First-tier Tribunal where landlords have sought to pass the costs on to leaseholders.
Unease over this, coupled with a concern over the slow progress of remedial works to privately owned buildings, led the government to announce in May 2019 that it was creating a £200m safety net fund to provide some cost cover for remedial works to privately owned buildings (where parties have first taken reasonable steps to recover the costs from those responsible for the presence of the unsafe cladding). This is in addition to the £400m already committed to fund remedial works to publicly owned buildings.
What next?
■ New buildings: The position in relation to new buildings is now at least tolerably clear. On 21 December 2018, the Building (Amendment) Regulations 2018 (SI 2018/1230) came into force, adding new regulation 7(2) to Building Regulations, imposing a complete ban on the use of combustible materials anywhere in the external walls of residential buildings over 18m in height.
The ban is not retrospective but will apply to all new buildings and also to existing buildings where a new requirement to comply with Building Regulations is engaged (for example, on an external refurbishment).
■ Non-residential buildings: Unsurprisingly, the focus to date has been on residential buildings. However, section 12 of ADB applies to high-rise commercial buildings as well as residential buildings, and there are likely to be many hundreds of commercial buildings whose compliance with Building Regulations is now in question. This was emphasised by the government in May 2019 and it seems likely that attention will shift to commercial buildings as the number of offending residential buildings is brought under control.
■ Other external wall finishes: ACM is one of a number of types of cladding and cladding is itself one of a number of different types of external wall finishes. Again, the focus to date on ACM has been unsurprising, given that this was the material used on Grenfell Tower. However, the application of ADB is not limited to cladding (let alone ACM cladding). Industry experts are already raising concerns about other external finishes and it is clear that ACM is not the end of the story.
Further reform?
The government has committed to reform following the Hackitt Review. A consultation document was issued in June 2019, seeking feedback on wide-ranging proposals. These include a more stringent safety regime for residential buildings over 18m in height, the introduction of the concept of “dutyholders”, who will have clearly defined responsibilities for building safety and the possibility of enforcement through private civil actions as well as criminal sanctions.
The consultation closes on 31 July 2019 and it seems likely that implementation will follow swiftly thereafter.
The regulatory landscape
- “Building work” as defined by section 3 of the Building Regulations 2010 (the 2010 Regulations) must comply with Building Regulations.
- Paragraph B4 of the 2010 Regulations requires that “the external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building”.
- Approved Document B (ADB) provides (non-exhaustive) guidance as to how compliance can be achieved.
- ADB 12.6 previously stated that “In a building with a storey 18m or more … any insulation product, filler material (not including gaskets, sealants and similar) etc used in the external wall construction should be of limited combustibility…” – “limited combustibility” means European class A2-s3 d2 or better.
- Since July 2019 this now reads “In a building with a storey 18m or more… any insulation product, filler material (such as the core materials of metal composite panels, sandwich panels and window spandrel panels but not including gaskets, sealants and similar) etc used in the construction of an external wall should be class A2-s3, d2 or better”.
- For residential buildings over 18m, however, this is superseded by Regulation 7(2) (of the 2010 Regulations) introduced in December 2018: “Building work shall be carried out so that materials which become part of an external wall, or specified attachment, of a relevant building are of European Classification A2-s1, d0 or A1, classified in accordance with BS EN 13501-1:2007+A1:2009 entitled “Fire classification of construction products and building elements. Classification using test data from reaction to fire tests” (ISBN 978 0 580 59861 6) published by the British Standards Institution on 30 March 2007 and amended in November 2009.”
Paul Tonkin is a partner in the real estate disputes team at Hogan Lovells International
