Disputes - What to look out for in 2020: Fire safety

In brief

• as we move into Phase 2 of the Grenfell Inquiry, the focus on fire safety will continue as a key issue for developers, design and build contractors, construction professionals, property owners and Building Inspectors alike.
• we are likely to see a continued rise in claims seeking to allocate liability for the cost of remedial works. The focus will move beyond ACM cladding to other types of external wall systems and other aspects of building design. HPL panels have already been identified as a potential area of risk, and the costs involved in removing and replacing HPL panels are likely to be significant and lead to disputes.
• phase 2 of the Grenfell Inquiry will consider testing and certification of products and also the adequacy of the Building Regulations, which Dame Judith Hackitt has already commented are not fit for purpose. The industry will be looking for clarity both on the industry’s pre-Grenfell approach to the Building Regulations, and as to how the amended Building Regulations should be applied going forward.

Remedial works – the move beyond ACM cladding to other products

Recommendations in the Phase 1 Grenfell Tower Inquiry report include that remedial works should be pursued as vigorously as possible.

The focus for remedial works to date has largely been on Aluminum Composite Material (ACM) cladding systems as used at Grenfell. Other materials are being tested and the Government is carrying out a survey of high-rise buildings across the country. External wall systems using High-Pressure Laminate (HPL) panels have been widely used on high rise buildings across the UK. The government’s Advice Note 22 concluded that many HPL systems of a European classification of Class C or D, and systems using any type of HPL panels (Class B, C or D) with combustible insulation, are “very unlikely to adequately resist the spread of fire”. Immediate action in line with the previous Advice Note 14 is recommended. The scale of the remedial works required to address issues with systems using HPL panels may well match the scale of those required for ACM cladding.

Phase 2 of the Inquiry will also examine other design elements, including the testing regime and the role that UPVC windows, and issues with doors and lifts, played within the Grenfell tragedy.

Compliance with Building Regulations

We expect that clarity will be given in 2020 as to:

(i) how the Building Regulations were interpreted and applied on historic building works; and
(ii) how to ensure compliance with the Building Regulations (as amended) for any new build or refurbishment works now being carried out.

The Phase 1 Grenfell report, although not directly concerned with compliance with Building Regulations, concluded that the external cladding did constitute “building work” within the meaning of the Building Regulations, and that, given events, “…it would be an affront to common sense” to hold that the works had complied with requirement B4(1) of the Regulations.

Proceedings issued by Premier Inn against their design and build contractor following a fire may also clarify the court’s approach to the industry’s historic approach to the Regulations. Premier Inn alleges breach of an absolute obligation to procure compliance with B4(1). Defence arguments centre on the ambiguity of the Building Regulations in place at the time. Trial is anticipated to start in late 2020.

Concerns have been expressed as to the workability in practice of the amended Regulations. The ban on the use of combustible materials in the external walls of buildings which was introduced to the Building Regulations in late 2018 (SI 2018 No 1230) applies to any “building work”. This extends to any decorative or other finish applied to any external surface, windows and doors. A ban on items attached to external surfaces of high rise buildings was recently quashed for lack of consultation following a challenge by the British Blind and Shutter Association. This is likely only to be a temporary reprieve for the blind and shutter industry and for those developing or managing buildings with those items affixed. A key issue for the industry going forward is how these new regulations can be applied. In particular, it is often difficult to find products in the market that meet the requirements as to limited combustibility.

What this means for you

• the Phase 2 Grenfell Tower Inquiry report will have implications for manufacturers and suppliers of construction products and their users, whether in relation to historic contracts or in terms of developing and specifying compliant products for new projects.
• property owners will now need to assess whether or not remedial works are needed where HPL panels and other external wall systems are in place and will need to look at other elements of their external wall design including windows, doors and decorative elements.
• disputes over the responsibility for the costs of remedial works will continue, as will a much-needed focus on fire safety.