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Due diligence in respect of compliance with fire and building regulations in light of the Grenfell Tower fire

In light of the events that took place at Grenfell Tower last June, many building owners or prospective purchasers will need to consider reviewing their property portfolios and associated fire safety systems within similar high rise buildings.

The tragedy at Grenfell Tower was not the first warning that the 2010 Building Regulations and the 2007 Building Safety and Fire Safety Procedural Guidance published by the UK Government require urgent review.

Following a fire at Lakanal House in Camberwell, London in 2009, in which six people lost their lives, the coroner’s report recommended a review of Part B of the 2010 Regulations (which deals with fire safety including means of escape, fire alarms, fire spread and access for fire and rescue services).

More recently, fires broke out in 2014 at the Lacrosse Tower in Melbourne and in 2015 at the Marina Torch Tower in Dubai. Both spread rapidly as a result of the combustible cladding systems installed, with the post incident report for the Lacrosse Tower citing the aluminium composite panels as a direct cause of the “speed and intensity of the fire spread”. 

Following refurbishment in 2016, new cladding had been installed at Grenfell Tower. It was subsequently revealed that the Grenfell Tower had been clad in polyethylene (PE) core aluminium composite panels (ACPs). ACPs with a PE core have been banned in countries such as the USA and Germany due to their highly flammable polythene foam core, however, this ban never filtered through globally. Questions therefore arose as to how the refurbishment passed regulatory checks.

Following the fire in June, hundreds of residential buildings were determined to be at risk, including buildings owned by councils, housing associations and private landlords. Landlords of those encased in the material identified as being the most flammable material were advised to remove it, while other building owners were advised to consider reviewing the combination of materials used. Furthermore, issues regarding the fire safety of buildings as a whole were brought to the forefront.

An independent review of the building regulations and fire safety was subsequently announced by the government and is currently underway.

The nature of fire and building regulation

Beyond the striking human tragedy caused by the Grenfell Tower fire, the disaster has brought into sharp focus the nature of fire and building regulation. The fire regulation framework in England and Wales focuses on containing a fire so as to allow people to escape and giving the fire brigade time to arrive and extinguish the fire. Although it appears clear that the cladding was a major contributor to the Grenfell Tower fire, so too were the issues with fire safety in the building and the fact that these risks had not been flagged by the Fire Risk Assessment and the Building Regulations.

Additionally part C2 of the building regulations (covering weatherproofing requirements) and approved document 7 issued under the building regulation framework in relation to materials and workmanship all need to be taken account of. Awareness and management of regulatory concerns is essential for the smooth running of all businesses, yet in the midst of corporate transactions, this is often viewed as less important. However, failure to carefully consider regulatory issues such as health and safety and construction issues could lead to buyers purchasing a property which is in effect unable to operate without the risk of a substantial fine for non-compliance.

The Health and Safety at Work Act (1974) is the primary legislation covering occupational health and safety in Great Britain. Enforced by the Health and Safety Executive or by Local Authorities any breach of health and safety legislation is a criminal offence and can result in the imposition of substantial fines.  In July 2017, police investigating the Grenfell Tower fire confirmed that they had reasonably grounds to suspect offences of corporate manslaughter may have been committed.

Fire Safety

Unsafe cladding is not the only concern raised with regards to the safety of high rise buildings.

The Regulatory Reform (Fire Safety) Order 2005 consolidated previous legislation on fire safety, setting out the regime for blocks of flats and buildings containing common parts for two or more dwellings. The Order requires a fire risk assessment to be carried out by a responsible person, who has the duty of ensuring that a risk assessment is carried out and potential hazards are mitigated. Consequently, anybody buying a building with a communal area needs to ensure that the first risk assessment is up to date and compliant with any new recommendations. Landlords and management companies must therefore ensure that fire risk assessments are regularly undertaken and remain up to date particularly after new plant equipment or other installations, new occupiers, or new operating procedures are introduced within a building

Failure to adequately carry out a fire risk assessment could result in the building’s insurance policy being invalidated and could also consequently result in the property being difficult to sell. Therefore building owners are well advised to commission a fire risk assessment should there be no current assessment on the property or if the current one needs updating.

Preliminary findings of the independent review

Dame Judith Hackitt, an engineer with a strong regulatory background, was commissioned by the government to lead the review into building regulation and fire safety and related compliance and enforcement issues. Whilst concentrating primarily on high rise buildings, the review should serve as a timely reminded to property owners and occupiers of the importance of considering and abiding by such regulations.

The two key priorities of the review are to develop a more robust regulatory system for the future and provide further assurance to residents that the buildings they live in are safe. Whilst the review will cover regulations involving all buildings, its primary focus will be upon multi-occupancy high rise residential buildings.

Dame Hackitt’s initial findings were published on 18 December 2017, with the full review due to be published in the spring 2018. In its interim report, the review found that the current system for ensuring fire safety in high rise buildings is “not fit for purpose” and that “current regulation and guidance is both complex and unclear”. Dame Hackitt held that the industry must take greater responsibility for what is built and that residents of such buildings should have a clear route to follow should they wish to raise concerns about their housing.

The report went on to identify six broad areas for change –

Conclusion

The Grenfell Tower fire has sought to further focus the spotlight on the adequacy of building and health and safety regulations, as well as the industry’s adherence to them. There is little doubt that the fire will encourage public support for the court’s stricter approach to compliance with regulations, however, those involved in building design & construction, building owners and occupiers and prospective purchasers also need to consider their approach and ensure that best practice is followed in order to ensure that safety is paramount and the potential cost of compliance and/or remedial work is identified and considered early  on in any negotiations. 

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