21 December 2018

Fire Safety update

Many of you will be familiar with the Hackitt Report, the final version of which was published in May of this year, which made various recommendations following the Grenfell Tower tragedy in 2017.

Since the fire, and certainly since the publication of the Hackitt Report, the Government has come under increasing pressure to implement these recommendations and has recently made several fire safety related announcements, the most important of which are set out below.

1. Ban of the Use of Combustible Material

This week sees the implementation of a ban of the use of combustible materials in buildings similar to those which allowed the Grenfell Tower fire to spread so quickly. The details of the ban are set out in the Building (Amendment) Regulations 2018 (S.I. 2018/1230) (“the Regulations”) which amend the Building Regulations 2010.

On the 21st December 2018, when the Regulations come into force, the use of combustible materials in the external walls of new, high rise buildings over 18 metres high that contain one or more dwellings, an institution, or a room for residential purposes will be banned. This will include residential blocks, hospitals and care homes but not hotels or any commercial buildings.

What material can be used?

Regulation 7(2) of the Regulations provides that only materials of limited or no combustibility (Classes A1, A2-s1 or d0) can be used as part of an ‘external wall’ or ‘specified attachment’ of a building caught by the legislation.

Which locations are caught?

Regulation 2 defines ‘external walls’ as:

  1. anything located within any space forming part of the wall;
  2. any decoration or other finish applied to any external (but not internal) surface forming part of the wall;
  3. any windows and doors in the wall; and
  4. any part of a roof pitched at an angle of more than 70 degrees to the horizontal if that part of the roof adjoins a space within the building to which persons have access, but not access only for the purpose of carrying out repairs or maintenance.

‘specified attachment’ is defined as meaning:

  1. a balcony attached to an external wall;
  2. a device for reducing heat gain within a building by deflecting sunlight which is attached to an external wall; or
  3. a solar panel attached to an external wall.

What is a ‘New Building’?

The Regulations will apply to all new buildings of the types set out above except if a Building Notice, Initial Notice or full plans have been given to the relevant Local Authority before the 21 December 2018 and the building works have already started before that date or will be started within two months from that date.

Government guidance suggests that it is likely that the starting of work would usually be marked by work such as:

  1. excavation for strip or trench foundations or for pad footings;
  2. digging out and preparation of ground for raft foundations;
  3. vibrofloatation (stone columns) piling, boring for piles or pile driving;
  4. drainage work specific to the building(s) concerned.

The Government considers that the following sorts of work would not be likely to constitute the commencement of work:

  1. removal of vegetation;
  2. demolition of any previous buildings on the site; removal of top soil;
  3. removal or treatment of contaminated soil; excavation of trial holes;
  4. dynamic compaction;
  5. general site servicing works (e.g. roadways).

Other Changes Coming into Force on 21 December 2018

  • If a building is changed to become one of those caught by the Regulations then its external walls and any specified attachments must be tested and remedial work undertaken if necessary to remove any material that falls outside the permitted classes;
  • Already in force is a new section of the Housing Health and Safety Rating System (HHSRS) relating specifically to cladding on high rise residential buildings. The HHSRS is the risk based evaluation system used by Local Authorities to assess hazards and risks which exist in private buildings. The addition to the HHSRS will allow Local Authorities to take enforcement action against the owners of private buildings if they refuse to remove unsafe cladding or to carry out remedial works itself before recovering the cost from the landlord.

2. The "Building a Safer Future" Policy

The Government has also launched a series of measures to implement the recommendations made in the Hackitt Report and generally to boost building safety (with a particular emphasis on fire related risks).

Two new bodies have been created, a Standards Committee will advise on construction projects and a Joint Regulators' Group comprised of the Local Authority Building Control, the National Fire Chiefs Council, the Local Government Association and the Health and Safety Executive, will canvas views of other statutory groups and trial potential new regulation prior to the introduction of legislation.

The series of Approved Documents accompany the Building Regulations and new versions are due to come into effect on 21 January 2019. Approved Document B has been updated to incorporate guidance about Regulation 7(2) which is detailed above and will also clarify how desktop fire safety assessments should be used. Approved Document 7 has also been amended to introduce the combustible material ban and now refers readers to Regulation 7(2) for information about it.

In addition, the Government has made a call for evidence, "Good practice on how residents and landlords work together to keep their home and building safe". The deadline for comments is 12 February 2019 and it is hoped that the ongoing development of policy relating to fire and structural safety issues will be aided by the responses.

What is clear is that this is not the end of the road in terms of safety measures in a post-Grenfell world and the discussion about what needs to happen looks set to continue. In the interim, however, please do not hesitate to contact Natasha Rees or Sarah Heatley in the firm's Property Litigation team.

"The advice they give is always clear and concise – they take something complicated and make it easy to understand."      
Chambers UK, 2018
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