A duty of care?

The tragic events at Grenfell Tower in June 2017 triggered a wholesale review of Building Regulations in England.

With building regulation a devolved matter,¹ this is being watched closely by the rest of the United Kingdom. As well as the Independent Review of Building Regulations and Fire Safety, led by Dame Judith Hackitt,² the government has established its own Building Safety Programme³ to coordinate the response to Grenfell. This has produced a comprehensive set of briefings and advice notes, as well as a monthly data release.⁴

The most recent data, from mid-July 2018, reveals that 474 high-rise residential and publicly owned buildings have aluminium composite material (ACM) cladding systems, which are unlikely to comply with current building regulations. As many as 159 are social housing blocks, 14 are other public buildings, and 301 are private sector residential buildings, hotels and student residences.

Just under half of the private sector blocks have undergone testing by BRE. The challenges of replacing the cladding on these buildings have already been widely reported, and will require significant design and installation skills, as well as industry capacity to deliver so many projects.

The government, in consultation with the Independent Expert Advisory Panel – established immediately after the fire at Grenfell – has published guidance for anyone responsible for fire safety in residential buildings more than 18m high in England.⁵

In response to the Independent Review, the government has consulted on a ban on the use of combustible materials in external walls of buildings more than 18m high. It has now been followed by the Welsh Assembly Government, which has launched a similar consultation. For full details and CIBSE’s response to the English consultation, see our consultation pages.⁶

CIBSE broadly supports the proposed ban – subject to exceptions for materials such as seals and gaskets – and to particularly careful consideration of the transitional arrangements for projects already underway when any ban comes into force.

However, problems with ACM cladding are not confined to England or the UK. Australia has its own difficulties, as first identified following the Lacrosse tower fire in Melbourne in November 2014. In this case, rapid vertical fire spread beyond the room, or area, of fire origin. However, no fatalities or serious injuries occurred at Lacrosse.

The official report for the City of Melbourne⁷ in April 2015 noted that the fire raised questions about both the cladding system – and whether it had been approved or accredited – and about compliance with the Building Code of Australia.

In March 2018, the State of Victoria issued a Ministerial Guideline⁸ restricting the use of any ‘prescribed combustible product’ as part of an external wall, unless the Building Appeals Board has determined the installation complies with the Victoria Building Act and regulations. The guideline has been issued ‘to reduce the risks to life and property, which can arise from the inappropriate use of products containing combustible materials’.

In August 2018, the New South Wales government issued a ‘building product use ban’⁹ under powers contained in the Building Products (Safety) Act 2017. This prohibits the use of aluminium composite panels (ACM in UK terminology) where the core contains more than 30% polyethylene by mass in any external cladding, wall, insulation, façade or rendered finish in a wide range of buildings, some with as few as two storeys.

However, the ban does not apply to products that have successfully passed a test to the relevant Australian Standard, or where the product and proposed wall assembly have passed tests for both external wall fire spread and building-to-building fire spread.

These restrictions are not as wide ranging as those being proposed in England and Wales, and both say very little about the transitional arrangements for projects already underway, but they appear to apply to new applications for permission to build. They also explicitly allow systems or products that pass certain tests, subject to the test being carried out to the latest Australian Standard and in a recognised test facility. This may have relevance to the proposals in parts of the UK.

This summer has seen high temperatures in the UK – albeit they are normal for our readers in Hong Kong or Australia – which have caused considerable problems with overheating in buildings. The House of Commons Environmental Audit Committee decided in February 2018 to investigate the problem of overheating, and CIBSE’s head of research, Dr Anastasia Mylona, gave evidence that featured at some length in the committee report.¹⁰

This called for better regulation of overheating in the Building Regulations to better protect the health of occupants. There was considerable discussion in the committee about the role of regulations in safeguarding the health of occupants.

And, in a further twist, it has been reported that the Equalities and Human Rights Commission (EHRC) has responded to the recent consultation on banning combustible cladding in England.

It is said to argue that government has a duty to protect lives under Article 2 of the European Convention on Human Rights (ECHR) and Schedule 1 to the Human Rights Act 1998 (HRA), and to have told government that it considers systemic failings that led to the Grenfell Tower fire still exist and give rise to an ongoing violation of Article 2 ECHR/HRA by the state.

Notably, the commission refers to systemic failings; there is a real concern that banning combustible materials is seen as a ‘solution’, not as part of a much wider overhaul of building regulations, as envisaged by Dame Judith Hackitt.

However, the commission’s intervention in the debate introduces a further dimension to the ongoing discussions. With the consultation closing in mid-August, we await the government’s response with additional interest, and readers will be kept informed.

References:

1. A concise summary of the current regulatory arrangements throughout the UK is available here. 
2. Independent review of building regulations and fire safety: Hackitt review.
3. Building safety programme.
4. Building safety programme: monthly data release.
5. Government building safety programme – update and consolidated advice for building owners following large-scale testing.
6. Current consultations.
7. Lacrosse Building fire municipal building surveyor report.
8. Minister’s guideline under section 188 of the Building Act 1993, Victoria Government Gazette.
9. Building product use ban.
10. Heat-related deaths set to treble by 2050 unless government acts.

Hywel Davies is technical director at CIBSE