Legal questions raised over unsafe cladding ultimatum

The announcement made to developers today (10 Jan) by Mr Gove raises more questions than it answers. The position in law of sub-18m buildings has not before been brought before the Courts for determination, and there are a number of important points to consider.

First, certain building defects – such as the absence of cavity barriers or fire breaks – are not either under the mandatory Building Regulations or the approved document guidance a matter to which the 18m level is an applicable criteria. Second, the mandatory Building regulation B4(1) – the obligation to resist fire – applies regardless of height of the building. Third, the 18m distinction is one which only is to be found in the guidance contained in the approved documents (ADB). For all these reasons, the 18m distinction applied by the Government Building Safety Fund put in place by the Chancellor in early 2020 has always appeared difficult to justify.

In the context of uncertainty around who is liable in the construction of these buildings, there is a question mark around the statement of making developers pay. If this means a liability in civil law, then that needs to be determined and on a case-by-case basis. But it seems this is not what is meant – instead, the proposal seems to be to achieve a fund similar to the BSF which is funded by developers. There are obvious difficulties with this, including the issues of developers who no longer exist, or who were profitable when the building was completed but are not now. Insurance will only cover design failings not workmanship issues, and many of the cladding issues arising result from the latter.