Cladding and Grenfell – the legal landscape

The following is the summation of a series of talks we have given regarding issues concerning cladding following the Grenfell tower disaster. These notes are not intended to be relied upon as advice and specific advice should be taken on any of the issues raised in the summary below. No assumption of responsibility is therefore made.

We reviewed the subject of Cladding under 5 principal headings:

• Section A: How did we get here? The Background
• Section B: The Regulatory Landscape
• Section C: What is your Responsibility and to Whom?
• Section D: Recovery Claims
• Section E: Where do we go from here?

Section A: The Background

The recent tragedy at Grenfell tower concerned “PE” ACM cladding panels attached to a building over 18 meters high. Grenfell was a terrible tragedy with substantial loss of life but it was far from being a one-off event. There have been a series of fire events and various attempts to regulate. Surprisingly it was only in 1961 that National Building Regulations came in to being instead of local or regional regulation.

The current issue is with buildings over 18 meters high and ACM (Aluminium Composite Materials) cladding which is a sandwich construction consisting of two outer layers (normally aluminium) with a central core or filler (this itself is a potentially contentious term).

But ACM is not the only issue; there is insulation under or behind the cladding, fire stopping/breaks, air gaps and funneling effects as well as a lack of standardisation in buildings.

Grades of ACM:

1. PE – Polyethylene (Reynobond PE is what was used on Grenfell)
2. FR – this means Fire Retarding not Fire Resisting
3. A2 – Non-combustible material.

Grades of insulation – two principal types are:

1. PIR – Polyisocyanurate foam often branded Kingspan or Celotex
2. Rockwool – Mineral wool fibre

The 18 m issue is itself only derived from the ADB (Approved Document B) and is in fact an historical anomaly relating to the maximum firefighting access (as it then was). The 18 m provision exists as benchmark but questions arise as to whether this will persist after the inquiry into the Building Regulations.

Section B: The Regulatory Landscape

The Building Act 1984 generates the power to make the Building Regulations. Section 7 of the Regulations creates a favourable presumption for those who purport to follow an approved document – hence the significance of those documents.

Certificates issued are, however, a rebuttable presumption only. Building Regulations 2010 Section 17(4) states:

“A certificate given in accordance with this regulation shall be evidence (but not conclusive evidence) that the requirements specified in the certificate have been complied with.”

The Building Regulations are updated from time to time but those most relevant at the moment are the 2010 regulations. From the mid 1980’s there was a move away from rigid or prescriptive rules to functional requirements. The most relevant functional requirements are:

1. B3 Internal fire spread (structure); and
2. B4 External fire spread

B4 – External Fire Spread: B4(1) provides “the external walls of a 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“.

There is an issue of what is meant by “shall adequately“. The concern is with a reasonable standard of life safety, not a requirement for property protection.

Approved Document B (ADB) is guidance and there are alternative solutions/routes to compliance (see below).

Paragraph 12.5 of ADB states external walls should either:

1. meet the guidance given in ADB 12.6 to 12.9; or
2. 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 using full scale test data from BS 8414-1: 2002 or BS 8414-2: 2005.

BS 8414 tests are discussed below.

ADB 12.5 sets the scene:

“The external envelope of a building should not provide a medium for fire spread if it is likely to be a risk to health or safety.”, but then continues: “The use of combustible materials in the cladding system and extensive cavities may present such a risk in tall buildings.”

ADB 12.6 concerns fire surface spread, and ADB 12.7 concerns combustibility.

An issue is whether the industry read both, particularly 12.7.

Did the industry get confused between Class 0 in a 12.6 sense (manufacturer specification sheets etc) and the requirements of 12.7? Compliance with Class 0 under 12.6 does not mean compliance with 12.7.

ADB 12.6 refers to diagram 40 and it is in this diagram where the Class 0 requirement is stated. There is also a complex issue of 1 m to relevant boundary set out in the diagrams (where that is relevant).

The way the regulations are set out is not easy:

Class 0 is a defined performance, not a test. Class 0 is defined at “Appendix E Definitions” of Volume 2 ADB Appendix E: Definitions refers itself to:

“relevant test criteria are set out in Appendix A, paragraph 13.”

ADB Appendix A: Performance of Materials, Products and Structures:

Under paragraph 13, ADB provides achievement standards Class 0 compliance is assessed by two BS standard tests, BS 476-6 and 476-7.

This is an involved “chain” of regulation.

ADB 12.7 says “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… “.

An issue arises as to whether the ACM core is filler or not?

The 1999 fire in Irvine Scotland led to amendments being made in the 2006 Volume B ADB.

The ACM cores themselves are not an insulation product – their role is not to insulate. But the question arises as to whether or not the core of ACM is filler. The 22 June 2017 DCLG Government letter answered this question and clearly says that it is. Some contractors have suggested this letter represented a change in requirements or interpretation.  This is disputed; the letter confirms an existing position.

Other routes to compliance:

The BCA (Building Control Alliance) Technical options 1-4 set out 4 methods to compliance:

• Option 1 is the same as ADB 12.6-12.9
• Option 2 is BS 8414/BR 135: BS8414 is a 2002 British Standard for Fire Performance of External Cladding
• Option 3 is desktop assessment – these are difficult to obtain as a result of Grenfell
• Option 4 is a Fire Engineering Solution – this is normally used where the entire building needs to be designed to address fire safety issues (such as single staircase buildings).

The BS8414 test is currently being heavily used by commercial parties and Government to test cladding. The test devised by BRE evaluates whether a cladding system subjected to fire breaking out will result in excessive fire spread up the outside of the building. The current position as to results on fire tests of an 8 m high section of walling are as follows:

• PE & Celotex PIR/ PE
• Kingspan PIR
• PE & Rockwool
• FR & Celotex PIR
• FR &  Kingspan PIR

They have all failed; only FR & Rockwool and A2 & Celotex PIR have passed.

Clearly each individual scenario needs to be assessed as to whether failure is likely given these results and/or whether a specific test is required. The current practical problem is a long wait for tests.

Section C: What is your Responsibility and to Whom?

There are varying ownership/occupation obligations.

• Owner/Landlord/Tenant – the obligations will change depending on whether you are under a full repairing leases or you have a more limited obligation; and
• Social Housing – It is worth noting that issues may arise in respect of units which have previously been sold off.

Management Companies

H&S obligations – two initial questions to think about:

1. Do you have power to stop people occupying?
2. Do you have power to put the cladding right?

Fire Safety: Regulatory Reform (Fire Safety) Order 2005:

These regulations apply to all buildings other than residential homes. There is an obligation to conduct Fire Safety Risk Assessments and to ensure that you are kept up to date with the regulations through ongoing monitoring and review. There is a need to ensure adequate and appropriate fire safety measures for the entirety of the building. It is also worth mentioning that local fire and rescue authorities are responsible for the enforcement of the Fire Safety regulations.

Whilst any suitable and competent person may carry out the Fire Risk Assessment, it should generally be an independent specialist/Fire Safety Consultant. As a side-note, within the industry there are current issues over qualifications and suitability of individuals for carrying out the necessary Fire Risk Assessment.

Health and Safety Legislation:

There are duties owed to employees and visitors/users.

The legislation places a non-delegable duty upon an employer to ensure, so far as is reasonably practicable, the health and safety of employees/visitors. A breach of this duty is a criminal offence.

The enforcing authority will need to establish a material risk to health and safety; it is important to understand that they are looking for a present potential danger rather than an actual danger. The authorities only need prove a present potential danger existed and are not required to prove that the risk was appreciable or foreseeable. The authority needs to prove that the risk was not fanciful or trivial but it is not necessary to prove that an accident or injury occurred.

Defence:

Not reasonably practicable to do more:

• Employer to prove, on the balance of probabilities, that it was not reasonably practicable to do more than was in fact done.

The fine on conviction for a breach of duty under Section 2(1) is unlimited. There is pressure from the Government for an introduction of larger fines and more custodial sentences.

Discharging the Duty in practice:

It is important to consult a proper H&S adviser but look to:

• Assess impact that activities have upon safety;
• Ensure that there is scrutiny by suitably qualified and competent individuals;
• Have a working consideration of the current fire safety arrangements;
• Identify and implement preventive and protective measures;
• Follow the Industry/Regulatory guidance; and
• British Standards or Building Regulations is not determinative of compliance.

The key question which needs to be asked is whether the breach may have a material impact on risk or safety.

Other obligations:

Management of Health and Safety at Work Regulations 1999

There is a duty to assess risks faced by employees and other persons arising out of the conduct of the undertaking. One cannot transfer or delegate this statutory duty to external consultant. There is a strict liability criminal offence with an unlimited fine on conviction.

Statutory duty: take reasonable care to ensure visitors reasonably safe (Occupiers’ Liability Acts).

Section 37(1), HSWA: Offence committed by senior manager/director:

This is a H&S offence committed with the consent or connivance or any neglect on the part of, “any director, manager, secretary or other similar officer”. If proven the individual(s) in question,  as well as the business, is liable to be prosecuted personally.

The offence is punishable by up to 2 years imprisonment on conviction.

Corporate Manslaughter Act 2007:

There are certain duties owed as an employer and/or occupier. This is relevant for the Corporate Manslaughter Act 2007. Following an incident, there is the potential for an investigation by Police and HSE/Local Authority/Fire Authority in to what went wrong.

As a result, it is essential that H&S decisions are robust and evidence based.

Defective Premises Act:

This piece of legislation concerns residential building standards but is often overlooked. There is a potential impact on “mixed use” type schemes. It is important to bear in mind that a dwelling can also include tall buildings (18 m+ etc.).

Section D: Recovery Claims

Claims can possibly be brought to recover the cost of replacing cladding. Potential targets include the Main Contractor, Specialist, Design Consultant and/or the Fire Consultant. These can be sought by those either in direct Contract or under Warranty Deed. It is worth noting that Local Authorities are generally not liable for Building Regulation/certificate issues (this is a well-established case law based principle).

In principle, liability might exist by reference to the following requirements:

1. to meet statutory obligations;
2. for design;
3. for the selection of materials;
4. for workmanship.

A building’s insurance is only likely to respond in respect of the specified design obligations (PI insurance). The design relates to a duty of care to take reasonable skill and care (cf. more absolute contractual duties to meet statutory obligations, relevant British Standards or workmanship).

Other potential issues are Certifier Liability and Manufacturer/Product Liability.

Section E: Where do we go from here?

Following the tragedy at Grenfell Tower, and the various inquiries into Building Regulations, the following questions are raised:

• What changes can we expect within the Regulatory Framework?

• Will there be a return to more prescriptive and/or mandatory requirements?

• What will be the outcomes of the inquiry?

• Will the 18 m divide survive?

• Can we expect large-scale industry changes?

• Who will drive these changes? Will they be driven by owners/developers of buildings (regardless of 18 m)?

• The insurers: will they drive change by what they will and won’t insure?

Other issues arise around fire stopping and the impact of alterations to and maintenance of buildings.

The role of D&B: is cost cutting responsible? Is profit the issue? Factual issues arise as to what was in fact built? It may not match the specification or proposals.

Role of Architects: Tendency of architects to borrow manufacturer specification literature in to specification documents? Use of the term “and/or other comparable product”.

In 2017 DCLG commissioned NBS Research. The research was published April 2017, just 6 weeks before the Grenfell fire, and the conclusions were not complimentary to the ADB system.

The outcome of the research showed that professional users find these two approved documents unnecessarily complex; especially when referring to Approved Document B. It was clear that users want clearer diagrams, pictures and simpler language.  Users favour prescriptive rather than non-prescriptive guidance.

The NBS report ends with a quotation from a Building Control Officer:

“The building regulations are becoming far too complex and scientific. They should be straight to the point so that everyone from the designer to the builder and the end user can understand them and implement them. There is no point in having a group of academics and scientists write the documents when nobody else understands them or have five different interpretations of what they actually mean and then expect somebody to build it on site. Go back to basics, minimum requirements with clear text and diagrams. There is an industry out there trying to untangle what the documents mean and what they should be complying with.”

The question arises as to whether or not this drive towards more a simple approach is realistic as buildings become ever more complex.

The Grenfell enquiry will not be the first criticism of ADB. Her Honour Frances Kirkham CBE Coroner’s Rule 43 letter on the Lakanal House fire stated:

“…Approved Document B is a most difficult document to use. Further, it is necessary to refer to additional documents in order to find an answer to relatively straightforward questions concerning the fire protection properties of materials to be incorporated into the fabric of a building”.