Stephanie Canham examines how the revised Building Regulations to limit cladding material use will affect construction disputes
May of last year saw the publication of the final version of the Independent Review of Building Regulations and Fire Safety: Building a Safer Future, almost one year on from the tragic events at Grenfell Tower. The Hackitt report, as it is known, was broadly welcomed in its call for a radical rethink of the regulatory system but drew widespread criticism for its failure to recommend an outright ban on using flammable material to clad high-rise buildings.
The government acted swiftly and, within days of the final report, announced a public consultation on changes to the Building Regulations relating to the use of combustible cladding in high-rise residential buildings. The resulting regulations, Building (Amendment) Regulations 2018 (SI 2018/1230), came into force on 21 December 2018 and, in basic terms, prohibit the use of combustible cladding on new high-rise residential buildings.
The new regulations make routes to compliance clearer. Where it is clear exactly what materials can and cannot be used, compliance becomes easier to identify for all parties
Subject to limited exceptions, the new regulations introduce a new minimum requirement for materials that become part of an external wall or balcony to be rated A2-s1, d0 or A1 under the European classification system set out in the standard BS EN 13501-1. Approved materials must therefore be A2 class or better: for example, metal, stone, glass or plasterboard.
This operates as a prescriptive ban on the use of combustible materials in external wall systems. Pertinently, this is in direct contrast to the previous position, where the undertaking of BS 8414 tests and assessments in lieu of tests was a permitted route to demonstrate compliance of a cladding system with the regulations.
The regulations apply to any building with a storey (not including rooftop plant areas or storeys consisting exclusively of plant rooms) at least 18m above ground level, which contains any of the following:
- one or more dwellings
- an institution
- a room for residential purposes (excluding any room in a hostel, hotel or boarding house).
So, buildings covered by the regulations are likely to include blocks of flats, hospitals, care homes, sheltered accommodation, dormitories in boarding schools, and student residences, provided these meet the height threshold.
A clear ban on certain materials makes breach easier to identify and prove, thus introducing significantly more certainty and clarity in the event of a dispute
In terms of the effect across the industry, it is notable that the ban on combustible materials only applies to new buildings, to refurbishment work where the external wall is involved, and to buildings that undergo a material change of use bringing them within the regulations’ scope.
However, although many new buildings are not explicitly caught by the regulations, it appears that, in light of potential insurance and other pressures post-Grenfell, a significant proportion of new projects are nonetheless already using materials that would meet the new requirements.
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Furthermore, developers are likely to be mindful of the potential for changes of use of their developments, and so it may be that we see them building with regulations-compliant materials even where not required to do so, with a view to limiting future costs of conversion. By way of example, an office block is not caught by the regulations; however, if the offices were subsequently converted to flats, the external walls would have to be brought into compliance with the new requirements. It may therefore make financial sense to build with compliant materials to begin with.
That aside, the key benefit of the new regulations is that they make routes to compliance clearer. Where it is clear exactly what materials can and cannot be used, compliance becomes easier to identify for all parties. This in turn reduces risks by ensuring that fire safety risks are better identified and managed by developers.
Further, given that the new regulations no longer allow the use of assessments – known as desktop studies – in lieu of tests for external wall systems, they remove the element of flexibility in demonstrating compliance with the regulations which may have led to what the government describes in its final impact assessment of the regulations as “inappropriate approaches being taken to the design and installation of external wall systems incorporating combustible cladding”.
From both a practical and a legal perspective, the likely upshot of these changes is that, where disputes arise, the new prescriptive requirement that certain materials must not be used will make it significantly easier to demonstrate non-compliance (and therefore breach) than the old output requirement. In short, a clear ban on certain materials makes breach easier to identify and prove, thus introducing significantly more certainty and clarity in the event of a dispute.