Abstract
In this paper the author looks at the initial fall out from the Grenfell fire on 14 June 2017, the UK governments initial response leading to the introduction of the Building Safety Act 2022. The author also reviews the recent High Court judgment in Martlet Homes Limited v. Mulalley & Co. Limited.
Introduction
On the evening of 14 June 2017, a fire started in a 24-storey residential tower in North Kensington, London, in the Grenfell Tower. The fire caused significant damage to the outside of the building, which had been clad with a cladding known as ACM (Aluminium Composite Material) Cladding, which is not to be used in buildings above 18 metres in height. The cladding, like many other similar buildings, had only relatively recently had the cladding installed to improve energy efficiency and for other building management reasons. The tower did not have a water sprinkler system, a common feature of the towers in the UK that were retrospectively clad from the original concrete construction. ACM Cladding is a lightweight composite cladding system made of 2 layers of aluminium sandwiching around a core of either polyethene (PE) or polyurethane (PUR). ACM cladding has been used worldwide for buildings of substantial height, most notably in Dubai and Australia.
The fire caused extensive damage to the tower, the loss of 72 lives and the hospitalisation of a further 74 people and 151 homes were destroyed. This was the greatest loss of life in a fire in the UK since the second world war. The wider repercussions of the fire and the reaction both in the UK and internationally to the fire have been far more widespread.
In this blog, I will consider the legal framework prior to the fire, the impact of the fire on the UK, and in particular, look at the changes in the statutory framework and regulatory framework in the UK. I will also briefly look at the wider international impact of the fire and the realisation that the cladding system taken for granted was such a risk to life. Finally, I will consider the impact of the Technology and Construction Court (TCC) judgment in the case ofMartlet Homes Limited v Mulalley & Co. Limited, the first major decision on a building reclad similarly to the Grenfell Tower.
The Legal Framework at the Time
To understand the position prior to the fire and the changes that have been introduced, it is necessary to understand the legal framework for works in high-rise buildings. The UK, which has an unwritten constitution and is a common law country, develops its laws through primary legislation and secondary regulations that sit underneath the primary legislative framework. In the case of construction, there are guidance notes issued by relevant stakeholders that address particular issues in construction. These might be issued by Government bodies or quasi Government bodies, in particular, the Building Standards Institute, the Building Research Establishment (BRE) and the British Board of Agrément (BBA). The checking of compliance with the regulations then falls to two relevant bodies, the Health and Safety Executive, which deals with health and safety on construction sites; and Building Regulation Surveyors, which used to be solely controlled by local government; however, private companies have now been able to provide this service for many years.
In 1984, the Building Act was passed to consolidate previous legislations regarding construction, design and specifications for buildings and their component parts. The Building Act permits the Secretary of State to issue detailed regulations for the management of construction, and the relevant ones are the Building Regulations. The Building Regulations are periodically reviewed and revised. At the time of the Grenfell tower construction, there were the Building Regulations 2000. There were subsequent Building Regulations introduced, but these did not materially affect the law in relation to Grenfell.
The key elements of the Building Act, as it presently stands, are the following:
Power to make building regulations.
(1) The Secretary of State may, for any of the purposes of—
(a) securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,
(b) furthering the conservation of fuel and power,
(c) preventing waste, undue consumption, misuse or contamination of water,
(d) furthering the protection or enhancement of the environment,
(e) facilitating sustainable development, or
(f) furthering the prevention or detection of crime,
make regulations with respect to the matters mentioned in subsection (1A) below.
1A) Those matters are—
(a) the design and construction of buildings;
(b) the demolition of buildings;
(c) services, fittings and equipment provided in or in connection with buildings.
(2) Regulations made under subsection (1) above are known as building regulations.
(3) Schedule 1 to this Act has effect with respect to the matters as to which building regulations may provide.
(4) The power to make building regulations is exercisable by statutory instrument, which is subject to annulment in pursuance of a resolution of either House of Parliament…
Section 7 deals with the requirement to comply and gives force to Approved Documents.
7 Compliance or non-compliance with approved documents.
(1) A failure on the part of a person to comply with an approved document does not of itself render him liable to any civil or criminal proceedings; but if, in any proceedings whether civil or criminal, it is alleged that a person has at any time contravened a provision of building regulations—
(a) a failure to comply with a document that at that time was approved for the purposes of that provision may be relied upon as tending to establish liability, and
(b) proof of compliance with such a document may be relied on as tending to negative liability.
(2) In any proceedings, whether civil or criminal—
(a) a document purporting to be a notice issued as mentioned in section 6(3) above shall be taken to be such a notice unless the contrary is proved, and
(b) a document that appears to the court to be the approved document to which such a notice refers shall be taken to be that approved document unless the contrary is proved.
The Building Regulations 2000 contained the following regulations relevant to the fire:
(i) Reg. 4, which required building work to be carried out so that it or any building materially altered thereby, complied with the applicable requirements in Schedule 1 (known as the “functional requirements”).
(ii) Reg. 7, which required building work to be carried out (a) with adequate and proper materials which are: (i) appropriate for the circumstances in which they are used; (ii) … (iii) applied, used or fixed so as adequately to perform the functions for which they are designed; and (b) in a workmanlike manner.
Schedule 1 to the Building Regulations amplified the points made in the main body of the Regulations, and of particular reference for the Grenfell fire were the following elements:
Requirement B3(4) stated, “the building shall be designed and constructed so that the unseen spread of fire and smoke within concealed spaces in its structure and fabric is inhibited”.
Requirement B(4) was headed “external fire spread”. Sub-section B(4)(1) states, “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”.
Regulation 4 was the subject of Approved Document B 2000, revised in 2002. Of particular relevance was section 13. Paragraphs 13.1 and 13.2 explain that the guidance, while not mandatory, is related to the fire resistance required of external walls and the combustibility of such walls. One of the provisions Paragraph 13.2 was to restrict the combustibility and to “reduce the danger from fire spread up the external face of the building”, exactly what happened in the Grenfell fire.
The documents then distinguish between buildings above and below 18m in height.
This applied to both the ACM cladding and the incorrect or complete absence of fire stopping in the cavities, an issue that has, for low-rise buildings, become more important. One of the key causes of the spread of the fire in Grenfell Tower was the absence of this fire stopping that would have significantly reduced the spread of the fire, the smoke entering the building and many of the deaths.
Initial Government Reaction and Global Reaction
Following the initial shock of the fire, an independent review of the Building Regulations and a survey of “High Rise” buildings was carried out. In the case of high-rise buildings in the UK, it was found, as part of the survey of 1200 blocks, that far too many of them had used ACM cladding and were classified as “dangerous” and ordered to be remediated. This, in part, has led to the recent case discussed below.
In Australia, which has a large number of high-rise blocks of flats, checks were carried out, and it was found that in the City of Sydney alone, 2700 buildings had been constructed using ACM cladding. The various Australian state governments are going through a similar process to the UK, which has led to much commentary on the changes to legislation brought forward by the Buildings Safety Act 2022 and the introduction of new Building Regulations and, in particular, the introduction of the British Standard Institute’s PAS 9980:2022.
The initial reaction was an over-abundance of caution and significant scare stories in the property market as all high-rise buildings were considered unsafe, and people were being moved out. In oneextreme example, in the London Borough of Camden, 4 blocks of flats, similarly clad to the Grenfell Tower, were deemed unsafe, and all 4 buildings were immediately emptied as they forced people out of their homes and into a local sports centre.
The UK Government published aConsolidated Advice Note once the scale of the problem became known and a form, the EWS1 form, was published and implemented. The EWS1 form became a requirement of all sales, at the instruction of the mortgage lenders, and created significant problems as the forms took a long time to be produced, and if they were not of the highest form could lead to sales falling through. These forms remained a requirement until January of this year, when they were replaced by the PAS 9980 review of buildings that are intended to take a more risk-based assessment and allow ACM to remain on buildings below 18 metres. ACM, it should be noted, was legal on buildings below 18 metres in any event and remains legal although not used in practice.
Many stories abounded in the press that owners of flats in high-rise buildings were being faced with financially crippling bills for the remediation of cladding running to as much as £100,000 per unit and above. The market in flats had begun to falter, and with the onset of Covid, prices in blocks of flats outside of the most sought-after areas began to fall. Sales were falling through due to the absence of EWS1 certificate or the refusal of mortgage companies to offer the money needed to finance the purchases.
The Building Safety Act 2022: Content and Related Government Action
The Building Safety Act 2022 (the Act) received Royal Assent on 28 April 2022 and is a very substantial piece of legislation running to some 171 clauses and 11 Schedules. Not all of it has come into effect, and it is likely to take between 12 and 18 months for all of the new and revised regulations to be published and for the Act to be fully implemented.
The headline changes that were made to the Act are to extend limitation periods for claims from the present 6 for defective premises under the Defective Premises Act 1972 to 30 years and to extend the ambit of the right to bring a claim. It also introduced a new limitation period of 15 years for bringing a claim in the future.
The other key developments, beyond a general toughening up of the regime, include changes to the parties who may be found liable and potential caps on the amount each leaseholder has to pay for specified remedial work. The rules on remediation, central to the legislation, are to be found in Part 5 of the Act. The most relevant for the purposes of this blog and for the readers to see is the meaning of “relevant building”, “qualifying lease” and “relevant defect” which are defined as follows:
117 Meaning of “relevant building”
(1) This section applies for the purposes of sections 119 to 125 and Schedule 8.
(2) “Relevant building” means a self-contained building, or self-contained part of a building, in England that contains at least two dwellings and—
- is at least 11 metres high, or
- has at least 5 storeys.
119 Meaning of “qualifying lease” and “the qualifying time”
(1) This section applies for the purposes of sections 122 to 125 and Schedule 8.
(2) A lease is a “qualifying lease” if—
a) it is a long lease of a single dwelling in a relevant building,
b) the tenant under the lease is liable to pay a service charge,
c) the lease was granted before 14 February 2022, and
d) at the beginning of 14 February 2022 (“the qualifying time”)—
(i) the dwelling was a relevant tenant’s only or principal home,
(ii) a relevant tenant did not own any other dwelling in the United Kingdom, or
(iii) a relevant tenant owned no more than two dwellings in the United Kingdom apart from their interest under the lease.
120 Meaning of “relevant defect”
(1)This section applies for the purposes of sections 122 to 125 and Schedule 8.
(2) “Relevant defect”, in relation to a building, means a defect as regards the building that—
(a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and
(b) causes a building safety risk.
(3) In subsection (2) “relevant works” means any of the following—
(a)works relating to the construction or conversion of the building, if the construction or conversion was completed in the relevant period;
(b)works undertaken or commissioned by or on behalf of a relevant landlord or management company, if the works were completed in the relevant period;
(c)works undertaken after the end of the relevant period to remedy a relevant defect (including a defect that is a relevant defect by virtue of this paragraph).
“The relevant period” here means the period of 30 years ending with the time this section comes into force.
It is not clear yet just how far the courts will interpret the law. What is clear is that after years of uncertainty and arguing, the rights of tenants to recover the cost of buildings would be enhanced. Tenants will now have protection against paying excessive service charge, unless they own more than 2 properties, and options that never existed before, such as applications for remediation orders through the First Tier Property Tribunal. Landlords may not be able to recover all costs from tenants that they previously would have been able to recover under the definition repairs and maintenance.
The other key change brought about by the government in 2022 isPAS 9980:2022, an advisory document published by the British Standard Institute, which sets out a process to assess the real risk to buildings with ACM cladding and related lack of fire breaks. This has led to a complete change in the situation as EWS1 certificates are no longer required, and remedial schemes are now becoming far more precise. To put this in context, the remedial schemes are now not requiring the full removal of the insulation and replacing it with non-combustible insulation; instead, they are ensuring that the fire breaks are properly in place to prevent a fire from spreading for sufficiently long a period to safely evacuate the people in the building and to contain the fire to make it easier to extinguish which keeping the cost down for the leaseholders.
Martlet Homes Limited v. Mulalley & Co. Limited [2022] EWHC 1813 (TCC)
This case dealt with a claim by the owner of a series of high-rise blocks spread across the town of Gosport in Hampshire, which just, like the Grenfell Tower, had been recladded in order to improve insulation and had used ACM cladding. This was the first time that the TCC had considered in detail a claim for the cost of remedial works.
The claim, while also noteworthy for legal reasons, was the first case to consider whether the use of ACM cladding and the omission/poor installation of fire stopping was recoverable from a contractor who carried out the works.
The relevant part of the case breaks down into two parts, a breach of statute case, in particular a breach of the Building Regulations 2000, and a breach of specification claim. Judge Stephen Davies gives a very thorough explanation of the legal framework in which the breach of the Building Regulations claim was set in paragraphs 76 to 164 of the Judgment and also carefully sets out to interpret the regulations and how the Approved Documents and other advisory information should be read with them.
He then goes on to consider whether the use of ACM cladding and the inappropriate installation of fire stopping in the buildings were themselves breaches.
The Judge concludes that in both cases, the contractor breached the contract and the regulations by the installation of the fire stopping and the use of ACM cladding. The Judge found in favour of the housing association and then went on to consider the quantum of the claim.
Concluding Comments
The Grenfell Tower fire was a tragedy made worse by a catalogue of errors, but it must be hoped that the death of those 72 people on that day just over five years ago will not, ultimately, end up being in vain. It brought to light a catalogue of failures in the UK and worse in some countries with the wholesale use of ACM cladding in buildings and the poor workmanship, by so many contractors, in installing fire breaks.
It has taken five years, but in that time, we have learnt a lot, and in the UK, necessary changes are being made to the rules to make people safer in their homes and better able to deal with problems when they arise.
The change in limitation periods is the most significant and makes it possible to bring claims that might otherwise have been barred to leaseholders. Changing the limitation period from 6 years to 30 years and also back dating the change, something rarely done under English Law is truly groundbreaking. In reality, given all that has been learnt about these fires and the introduction of PAS9980, from now on, we will be better able to deal with these issues. The introduction of further regulations to follow over the next 12 to 18 months will further strengthen the regulatory regime and ensure that future high-rise buildings, to the extent they are not already safer (which is the case in pretty much all buildings built since Grenfell) will be far safer for their occupants is something to be truly grateful for.
About the Authors
Mr. Richard Bailey a Partner at the City of London Law Firm, Druces LLP. He specialises in Construction, Engineering and International Arbitration, is a, member of ESCL Council Member of the CIArb and past chairman and treasurer of the UK Society of Construction Law.
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Preferred Method of Citation
Richard Bailey, “Grenfell and the Building Safety Act 2022” (IJPIEL, 3 August 2022)
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