Cladding

Secretary of State has power to make regulations with respect to design and construction of buildings. Duty upon local authorities, to whom plans are submitted, to reject them if they show that the proposed construction work would contravene any of the BR 2010 (S16(1)). Find out more: www.legislation.gov.uk/ukpga/1…

Fire performance of external thermal insulation for walls of multistorey buildings

Started at ground floor level and spread up 11 floors behind ‘rainscreen cladding’. Find out more: en.wikipedia.org/wiki/Knowsley…

Schedule 1: “The external walls of the building shall 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”. Find out more: www.legislation.gov.uk/uksi/19…

The fire drew the Committee’s attention to the potential risk which could be posed by fire spread involving external cladding systems. Find out more: publications.parliament.uk/pa/…

Published by BRE in 1000 as Fire Note 9 - test method to assess the fire performance of external cladding systems.

Inquiry following the Ayrshire Fire (Irvine) to establish: “whether a risk is posed by such cladding; the extent of the use of external cladding systems; the adequacy of the regulations pertaining to their use”.

Arises from the ABI research programme managed by BRE for the period 1999-2002. Bulletin is to assist commercial property insurers in understanding the features of composite panel systems, their use and management, including combustibility concerns.

Considers the stay put principle. Provides detailed advice on the fire safety information that should be made available to residents in light of the findings of a risk assessment. www.legislation.gov.uk/ukpga/2…

Regulations 1 The Building Regulations 2000 (as amended) (England and Wales) The Secretary of State has agreed with the British Board of Agreement (BBA) the requirements of the Building Regulations to which cladding products can contribute in achieving compliance. In the opinion of the BBA, Alucobond Cladding, if used in accordance with the provisions of this Certificate, will meet or contribute to meeting the relevant requirements.

Applies to virtually all premises (including shops, schools etc) but it does not apply to individual, domestic premises occupied buy a single family. Moved responsibility from the Fire Authority (which previously made prescriptive inspections of premises and issued Fire Certificates) to the “Responsible Person”. DCLG guidance sets out requirements for the Responsible Person. Find out more: www.legislation.gov.uk/uksi/20…

Blaze at the 14 storey Lakanal House on the Sceaux Gardens Estate in Camberwell; 6 people died. Find out more: en.wikipedia.org/wiki/Lakanal_…

ADB paragraph 12.3: Requires that the walls have the appropriate fire resistance (Appendix A, table A1)... 12.5: External envelope of a building should not provide a medium for fire spread, if that is likely to be a risk to health or safety. The use of combustible materials in the cladding system and extensive casualties may present such a risk in tall buildings External walls Meet the guidance given in paragraphs 12.6 to 12.9 OR meet the performance criteria given in the BRE Report Fire performance of external thermal Insulation for walls of multi storey buildings (BR 135) for cladding systems... 12.7: In a building with a storey 18m or more above ground level any insulation product, filler material (not including gaskets, sealant and similar) etc. used in the external wall construction should be of Limited Combustibility (see Appendix A).

Section 8: Limitation on requirements B4 the external walls of a property are required to adequately resist the spread of flames. Part B of Schedule 1: External Fire spread “The external walls of 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.” Find out more: www.legislation.gov.uk/uksi/20…

London Assembly report (final report was dated 9 February 2011) calling for UK Government to address a ‘crisis of confidence’ about fire safety on timber-framed construction sites and for people living in tall buildings in London. Planning and Housing Committee call for immediate review of fire regulations.

Refers to the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005. Considers Frances’s recommendations and provides a response this includes the suggestion that the DCLG “encourages provides of housing in high rise multi-occupied residential buildings to consider the retrofitting of sprinklers”. On Approved Document B, DCLG was "committed to a programme of simplification.... We have commissioned research which will feed into a future review of this part of the Building Regulations. We expect this work to form the basis of a formal review leading to the publication of a new edition of the Approved Document in 2016/17". 1. www.lambeth.gov.uk/sites/defau… 2. assets.grenfelltowerinquiry.or…

72 people lost their lives after fire broke out at the 24-storey Grenfell Tower in London. en.wikipedia.org/wiki/Grenfell…

For the avoidance of doubt: the core (filler) within an Aluminium Composite Material (ACM) is an “insulation material/product”, “insulation product” and/or “filler material” as referred to in Paragraph 12.7 (“Insulation Materials/Products”) in Section 12 “Construction of external walls” of Approved Document B (Fire safety) Volume 2 Buildings other than dwelling houses. (The important point to note is that Paragraph 12.7 does not just apply to thermal insulation within the wall construction, but applies to any element of the cladding system, including, therefore, the core of the ACM)”

The guidance in this Circular Letter applies to buildings and building work in England, and also to excepted energy buildings in Wales. Find out more: assets.publishing.service.gov.…

ttps://www.gov.uk/government/news/independent-review-of-building-regulations-and-fire-safety

FAIL test; it did not adequately resist the spread of fire over the wall to the standard required by the current Building Regulations guidance, and which is referred to in BR135. Recommendation to put in place a plan to review the cladding system and undertake remedial work, in particular to remove cladding. Based on the test results, the Expert Panel do not believe any combination of ACM with unmodified polyethylene filler and foam insulation would meet current Building Regulations guidance. This combination of materials therefore presents a significant hazard on buildings over 18m. Building owners should take professional advice on whether they will also need to remove and replace insulation.

FAIL: See test 1 ACM with unmodified polyethylene filler (category 3 in screening tests), and Stone wool insulation (a commonly used form of mineral wool insulation). Find out more: assets.publishing.service.gov.…

FAIL: ACM with a fire retardant polyethylene filler (category 2 in screening tests), and Polyisocyanurate (PIR) foam insulation. Take full professional advice on whether any remedial work is necessary to ensure the safety of their building. This may need to consider the combination of materials used in the cladding system, as well as whether the construction of their building meets the other provisions of Building Regulations guidance including fire stopping between floors and the required cavity barriers in place. Find out more: assets.publishing.service.gov.…

PASS: ACM with a fire retardant polyethylene filler (category 2 in screening tests), and Stone wool insulation (a form of mineral wool). Find out more: assets.publishing.service.gov.…

PASS: ACM with A2 filler (category 1 in screening tests), and Polyisocyanurate (PIR) foam insulation. Find out more: assets.publishing.service.gov.…

See more information here. www.grenfelltowerinquiry.org.u…

PASS: ACM with A2 filler (category 1 in screening tests), and Stone wool insulation (a commonly used form of mineral wool insulation). Find out more: assets.publishing.service.gov.…

FAIL: ACM with a fire retardant polyethylene filler (category 2 in screening tests), and Phenolic foam insulation (a commonly used form of rigid polymeric foam). Based on this result and an earlier test, and in the absence of any other large scale test evidence, the Expert Panel’s advice is that it is unlikely that any combination of ACM cladding with fire retardant polyethylene filler (category 2 in screening tests) and rigid polymeric foam insulation would pass the BS8414-1 test, and therefore meet current Building Regulations guidance. This combination of materials therefore presents a notable fire hazard on buildings over 18m. Find out more: assets.publishing.service.gov.…

Find out more: hhttps://www.gov.uk/government/publications/independent-review-of-building-regulations-and-fire-safety-terms-of-reference

Central theme of the interim report was that the current regulatory system for ensuring fire safety in high rise and complex buildings is not fit for purpose. Key points are as follows: •Current regulations and guidance are too complex and unclear, which can lead to confusion in their application to high-rise and complex buildings. •Lack of clarity in respect of roles and responsibilities for key activities. •Methods of assessing and ensuring the competency of key people are inadequate. Specifically, there are currently no special competency requirements for those working on high-rise and complex buildings. •Compliance, enforcement and sanctions processes are too weak. Often the building that has been designed is not the building that is constructed, and there is a lack of change control when this is the case. Deterrents and / or redress for non-compliance is currently inadequate. •The system of product testing, marketing and quality assurance is not clear. The use of desktop studies in particular to assess the equivalence of products and systems should be restricted.[Find out more](assets.publishing.service.gov.…)

314 buildings over 18 metres clad in ACM in England, with 301 unlikely to comply with Building Regulations as now interpreted. (www.gov.uk/guidance/aluminium-…).

In total, 314 properties have ACM cladding. Of this figure 301 (ie 95.9%) have failed the BRE test: Of the 301 buildings with ACM panelling that failed the BRE test, 130 were private residential buildings and 158 were social residential buildings. 4.Remedial works have been initiated on 58% of the 158 social residential buildings that have ACM cladding that fails the BRE test. Of these, seven buildings have finished the remediation process. Find out more: www.simmons-simmons.com/public…

**FirstPort Property Services Limited v Various long leaseholders to Citiscape (the tenants)** – FTT decision that fire marshall costs fell within the service charge on the terms of the lease, and the service charge was payable by the tenants. See here for Simmons & Simmons LLP’s blog post: files.simmons-simmons.com/api/…

In her final report, Dame Judith introduces a number of new terms in the Report. In particular, Dame Judith refers to Higher Risk Residential Buildings (HRRB) - namely new and existing high-rise residential properties which are 10 storeys high or more. The creation of a new Joint Competent Authority (JCA) comprising the Health and Safety Executive; the Local Authority Building Standards; and the Fire and Rescue Authority. Amongst other duties, the JCA would be responsible for holding the Client, Designer, Contractor and Owner to account, and for overseeing better management of safety risk in HRRBs throughout the lifecycle of the building. Regulatory framework: the Report recommends a new regulatory framework for fire safety in respect of HRRBs as the existing regulation is considered to be overly complex and unclear. Key roles and responsibilities: the Report lists and describes the roles of critical parties involved in a building project: Clients; Principal designers; Designers; Principal Contractors; and Contractors. Gateway points: the Report identifies three key “Gateways” throughout the lifecycle of a construction project where duty holders will have to satisfy the JCA that they can properly account for the safety of the as-built building, amongst other matters. Broadly speaking the Gateways are: 1) planning stage; 2) starting the work; and 3) handing the building over for occupation. Competence: Dame Judith calls for better accreditation of individuals working on HRRBs. Find out more: assets.publishing.service.gov.…

Read more here: www.gov.uk/government/publicat…

See report here. www.grenfelltowerinquiry.org.u…

Review of the ban on the use of combustible materials in and on the external walls of buildings - GOV.UK: www.gov.uk/government/consulta…

Consolidated Advice Note containing building safety advice for building owners, including fire doors - GOV.UK: www.gov.uk/government/publicat… (Note: publication then withdrawn 10 January 2022 and replaced with PAS 9980)

Fire safety: risk prioritisation in existing buildings – a call for evidence GOV.UK: www.gov.uk/government/consulta…

Summary of announcements made by the Building Safety Programme here: www.gov.uk/government/publicat…

Draft Building Safety Bill - GOV.UK: www.gov.uk/government/publicat…

Fire safety - GOV.UK: www.gov.uk/government/consulta… Read more in our article here: www.simmons-simmons.com/en/pub…

Read more here: www.gov.uk/guidance/remediatio…

Supplementary Note: assets.publishing.service.gov.…

Government steps in to help homeowners caught up in 'EWS1' process - GOV.UK: www.gov.uk/government/news/gov…

Pre-legislative scrutiny of the Building Safety Bill - Housing, Communities and Local Government Committee - House of Commons (parliament.uk): publications.parliament.uk/pa/…

Building (Amendment) Regulations 2018 – SI 2018/1230: read more here: www.legislation.gov.uk/uksi/20…

Government to bring an end to unsafe cladding with multi-billion pound intervention - GOV.UK: www.gov.uk/government/news/gov…

Fire Safety Act 2021: www.legislation.gov.uk/ukpga/2…

Residential Property Developer Tax: consultation - GOV.UK: www.gov.uk/government/consulta…

Cladding Remediation - Follow-up - Committees - UK Parliament: committees.parliament.uk/work/…

Jonathan Sakula | Grenfell Tower Inquiry: www.grenfelltowerinquiry.org.u…

Building Safety Bill - Parliamentary Bills - UK Parliament: bills.parliament.uk/bills/3021

Building Safety Bill - Wednesday 21 July 2021 - Hansard - UK Parliament: hansard.parliament.uk/commons/…

Building Safety Bill - GOV.UK: bills.parliament.uk/bills/3021…

Read the statement here: www.gov.uk/government/news/gov…

Read the letter here: www.gov.uk/government/publicat…

Building Safety Bill - GOV.UK: bills.parliament.uk/bills/3021…

Read the letter here: www.gov.uk/government/publicat…

Read the letter here: assets.publishing.service.gov.…

January 2020 Consolidated Advice Note withdrawn.

Building Safety Bill second reading in House of Lords: bills.parliament.uk/bills/3021… with significant debate: hansard.parliament.uk/lords/20…

Read the letter here: assets.publishing.service.gov.…

Read the press release here: www.gov.uk/government/news/gov…

Building Safety Act 2022 and explanatory notes here - www.legislation.gov.uk/ukpga/2…. See our May 2022 update (www.simmons-simmons.com/en/pub…) in relation to timeline for commencement.

Certain key provisions automatically in force 2 months from Royal Assent. Others require secondary legislation: see DLUHC page linking to secondary legislation and draft secondary legislation - www.gov.uk/guidance/the-buildi….

Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC) – see our July 2022 update here - www.simmons-simmons.com/en/pub….

Consultation covering the proposed changes to building regulations under part 3 of the Building Safety Act 2022 ran from 20 July 2022 to 12 October 2022. Government response published 17 August 2023 (see summary in our July 2022 update - www.simmons-simmons.com/en/pub…).

DLUHC published FAQs on Approved Document B including 2020 and 2022 amendments.

Building Safety Act 2022 (Commencement No. 2) Regulations 2022 bring into force sections 126 to 129 of the Building Safety Act from 1 September 2022. See our September 2022 update here - www.simmons-simmons.com/en/pub….

DLUHC guidance on how professionals carrying out fire-risk assessments for EWS1 forms can apply for the state backed PII scheme: EWS1 PII Scheme: How to apply.

St James’s Oncology Spc Ltd V (1) Lendlease Construction (Europe) Limited (2) Lendlease Construction Holdings (Europe) Limited [2022] EWHC 2504 (TCC): In a dispute involving works to a hospital, the court found that there had been breaches of technical standards and contractual terms (in particular failure to comply with the requirements of Health Technical Memorandum (HTM) 81, HTM 2007 and HTM 2011 in multiple respects), and the works therefore did not comply with the Building Regulations. Defects included inadequate fire separation (compartmentation) between primary and secondary power supplies within the plant room, inadequate or non existent fire stopping in walls, absence of a fire suppression system, and there was no evidence of any fire engineering justification to explain “numerous failures to comply with the Applicable Standards”. The contractor’s fire strategy was not an agreed and justified fire engineering solution.

Assethold Ltd v Leaseholders Of Corben Mews (LANDLORD AND TENANT - SERVICE CHARGES - whether reasonably incurred - costs of a waking watch) [2022] UKUT 282 (LC) (02 November 2022) (bailii.org). Waking watch expenditure in response to a survey report indicating an "intolerable" fire safety risk (albeit later survey conclusion thought to be wrong) was not irrational or unreasonable on information then available. No dispute before the Upper Tribunal that the terms of the lease meant that reasonably incurred costs could be recouped through service changes.

Medium Rise Buildings (11-18m) pilot scheme launched with leaseholder guidance - funding for the remediation or mitigation of the fire safety risks linked to unsafe external wall systems on medium-rise buildings where a responsible developer cannot be identified.

Consultation on design and implementation of the Building Safety Levy ran from 22 November 2022 to 7 February 2023. See: The Building Safety Levy: consultation - GOV.UK (www.gov.uk/government/consulta…).

LDC (Portfolio One) Limited v (1) George Downing Construction Limited; (2) European Sheeting Limited (in liquidation) - second post-Grenfell judgment on liability for building safety issues.

Batish & ors v Inspired Sutton Ltd & Ors (LON/00BF/HYI/2022/0002) (assets.publishing.service.gov.…): FTT decision granting what we believe to be the first Remediation Contribution Order made under s124 Building Safety Act. RCO made against a landlord/developer of a high-rise block of flats in respect of around £195,000 of service charges paid towards the remediation of building safety defects.

According to DLUHC Press release dated 30 January 2023, developers have been given 6 weeks to sign, and legislation will be brought forward granting powers to prevent developers from operating freely in the housing market if they fail to sign and comply with the remediation contract.

Consultation for changes to the building control profession and the building control process for approved inspectors ran from 31 January 2023 to 14 March 2023.

DLUHC Press Release (www.gov.uk/government/news/dev…) announced that 39 developers have signed developer remediation contract.

Operational Standards Rules for Building Control Bodies (BCBs) - GOV.UK - www.gov.uk/government/publicat…

Safety in high-rise residential buildings: Accountable persons  - GOV.UK - www.gov.uk/guidance/safety-in-…

Register a high-rise residential building - GOV.UK - www.gov.uk/guidance/register-a…

‘Severe consequences’ for cladding companies who refuse to remediate, government warns investors - GOV.UK - www.gov.uk/government/news/sev…

Consultation report: Draft Professional Conduct Rules (consultations.hse.gov.uk/bsr/c…) and Consultation report: Draft Code of Conduct (consultations.hse.gov.uk/bsr/c…)

Criteria for being a higher-risk building during the occupation phase of the new higher-risk regime - GOV.UK (www.gov.uk/guidance/criteria-f…)

See: Responsible Actors Scheme - GOV.UK (www.gov.uk/government/publicat…) and The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (www.legislation.gov.uk/ukdsi/2…)

URS Corporation Ltd v BDW Trading Ltd [2023] - (www.bailii.org/ew/cases/EWCA/C… EWCA Civ 772): a structural designer owed a duty of care to a developer and original landowner who had since sold on its proprietary interest in two developments. Where there is physical damage, the claimant's cause of action accrues when that physical damage occurs, regardless of the claimant's knowledge, and for inherent design defects, the cause of action accrues on completion of the building A DPA claim is open the developer under s.1(1)(a); the designer was "a person taking on work for or in connection with the provision of a dwelling", and recoverability of damages under the DPA "is not linked to or limited by property ownership".

DLUHC announcement (www.gov.uk/government/news/gov…) of fund for cladding removal scheme (the Cladding Safety Scheme, previously the Medium Rise Scheme pilot – see Homes England overview here)

See: Government response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings - GOV.UK (www.gov.uk/government/consulta…). The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 and The Building Regulations etc. (Amendment) (England) Regulations 2023) were laid Parliament on 17 August 2023.

See: Changes to the building control profession and the building control process for approved inspectors - GOV.UK (www.gov.uk/government/consulta…)

1 October 2023 is the deadline for registering qualifying HRBs, and the start of the new building control regime under the BSA 2022, with the BSR as the building control authority for all HRBs. See this video for a summary: simmons-simmons.wistia.com/med…