Mark London, Michael Wharfe and Yaasica Hamilton-Haye examine advice issued last week by the Ministry of Housing, Communities and Local Government for owners of multi-storey and multi-occupied residential buildings.
On 20 January 2020, the Government published an Advice Note that supersedes and updates the advice contained in Advice Notes 1-22 and can be found here.
The new Advice Note has been issued in advance of a new Fire Safety Bill which is likely to come into force this summer, and changes to Building Regulations, which are anticipated to come into force in February.
The main focus of the Advice Note is to ensure that building owners of all multi-storey and multi-occupied residential buildings undertake investigations into the external wall systems and fire doors, in order to determine whether they represent a risk to the health and safety of residents. Where the external wall systems or fire doors are considered to give rise to a risk, then advice should be taken on the remediation or mitigation measures required. Such investigations will be necessary not only in residential buildings, but also in hospitals, hostels and other buildings where overnight accommodation is offered. The height of the building is immaterial, and the focus of Advice Note 14 on buildings only over 18 metres no longer applies.
The Advice Note sets out the immediate actions that building owners should take now to address the risk of fire spread from unsafe external wall systems in order to protect the health and safety of residents. Whereas Advice Note 14 focused on the need to take general fire precautions under the Regulatory Reform (Fire Safety) Order 2005 (RRFO), the new Advice Note takes as its central focus Regulation B4(1) of the Building Regulations, which provides as follows:
“The external walls of the 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.”
It will almost certainly be the case that invasive inspections will need to take place, not least because the as-built or design information may not accurately represent what has been constructed, nor will it demonstrate whether cavity barriers and firestopping between compartments has been installed or constructed effectively. The methodology for determining whether mitigation or remedial steps are required broadly replicates that contained in the former Advice Note 14.
The shift in focus is no doubt a result of the imminent Fire Safety Bill and the fact that this will oblige building owners to assess the safety of external wall systems in any multi-occupied residential building, irrespective of height, and thereafter to put in place any remediation or mitigation measures required. The Advice Note emphasises the need to protect the health and safety of residents and, accordingly, urges building owners to carry out the investigations now, without waiting for any legislative changes to the current regulatory regime. The regime will be supervised and enforced by a new Building Safety Regulator, to be established within the Health and Safety Executive.
Changes to the law to introduce a positive obligation on building owners to check the safety of external wall systems and fire doors has been anticipated for some time. The fact that the new obligations will apply to all multi-storey and multi-occupied buildings, including those under 18 metres in height, is a fundamental broadening of what was previously expected.
It will now be necessary for building owners to now fully consider their stock of buildings under 18 metres in height, and to apply a risk-based assessment in order to determine the priority for inspecting, mitigating and remediating any defects in design or workmanship that give rise to a health and safety risk. In particular, the following steps may be taken:
- Identify your buildings: Many of our clients are responsible for hundreds if not thousands of multi-storey and multi-occupied residential buildings.
- Locate all records and as-built information in respect of your buildings: You will need to understand the system’s build-up. As-built drawings should contain this information, and if you do not hold copies, you should request them from someone who might (e.g. the Employer’s Agent or the original Contractor). You should also locate your construction contracts, development agreements, and certificates of practical completion.
- Confirm what materials make up the system: Review your drawings and other technical information to determine what materials make up the system, including external panels, frames, insulation, and cavity barriers.
- Seek advice on whether these materials are “of limited combustibility”: Materials of limited combustibility are defined by reference to the Building Regulations. Seek expert advice if you have any uncertainty as to the classification of materials in your system.
- Fire Doors: check whether the fire doors have been adequately maintained, and whether they meet the fire and smoke resistance performance contained in the Local Government Association Guide – “Fire Safety in Purpose Built Blocks of Flats”.
It will almost certainly be the case that the initial assessment of risk will have to be undertaken through a desktop study and a visual inspection, relying on the as-built information that is available. Subject to this limited assessment of risk, buildings will have to be prioritised and more detailed intrusive investigations undertaken.
The task confronting the industry is very significant. In order to ensure that there is a modicum of consistency in the approach taken by building owners to assessing risk, the Government is consulting on risk prioritisation in existing buildings. The consultation paper can be found here.
In our view, risk prioritisation will not be easy to define or implement, in circumstances where every single building is different. The key will be to understand as early as possible the precise make up and condition of the external wall system, and thereafter to receive advice from a suitably qualified fire engineer as to the risk that external wall system poses, and the extent of any mitigation or remediation required. Recovering costs for any mitigation or remedial works required will necessarily focus on a potential breach of B4(1) of the Building Regulations.
This Advice Note and the Fire Safety Bill that will follow it will have a profound impact on building owners, many of whom are reeling under the weight of having to deal with a large number of buildings over 18 metres in height. The Advice Note increases the burden significantly.
Whilst the content of the Advice Note is an understandable reaction to the manifest failures in quality control found in the design, construction and workmanship of external wall systems (most notably in tall buildings but also in low rise, timber frame buildings), the requirements will place a strain on an industry which is already struggling with capacity. There are only a limited number of fire engineers and forensic architects who are competent to give the advice required to building owners on mitigation and remediation measures.
Moreover, remedial works (where required) are not always simple or straightforward, and can easily become complex and time-consuming engineering projects, particularly where the remediation required extends to the wholesale replacement of the external wall systems. In the absence of Government funding for such mitigation and remediation measures, building owners will necessarily have to consider legal routes to recovery which can delay and complicate the carrying out of works.
In our view, the Government’s expectations can only realistically be met with a very significant injection of funding, along with a degree of patience borne out of an appreciation of the resources available to building owners within the construction industry. Politicians of all stripes need to be realistic about what can be achieved.
Further proposed changes
In addition to the new Advice Note, the Government has recently announced a series of new measures that will likely be seen in changes to the Building Regulations as early as February this year. These include:
- Compulsory sprinklers in multi-storey and multi-occupied buildings over 11 metres in height (and possibly lower); and
- A complete ban on the use of any cladding materials that are not of limited combustibility within external wall systems on buildings of whatever height.
It remains to be seen how these changes will impact on buildings that are currently under construction, or have received planning and building control approval. We will provide further updates as and when we receive further information.