Blog Author: Michael Haste – Director, Pascall+Watson
Since the tragic Grenfell Tower fire in June 2017 we have within the construction industry started to see a number of important developments that will ultimately re-shape our industry for many years to come. These will have far-reaching consequences on many of us but may have limited impact on others, but all should expect to see change of one form or another. Grenfell should never have happened and the fact that it did will remain for many years to come as a stain on our industry and one that should affect us all and ultimately change us all. My own immediate response to the fire was that it was not possible for it to be happening – a building built or refurbished to modern day standards could not possibly be on fire in the way that this building was – it defied my knowledge and understanding as an architect of what I thought the regulations provided for. But of course it did happen and we have hopefully all learnt the many reasons why it happened. But have we? Have we all read the Grenfell Tower Inquiry reports to date? Have we all read and understood Dame Judith Hackitt’s independent review of the building regulations and her condemnation of the construction industry in ‘Building a Safer Future’? And have we all read and understood the impact that the draft Building Safety Bill and recent Fire Safety Act, 2021 will have on our industry?
Grenfell Inquiry Phase 1 report
The Phase 1 Inquiry Report Overview published in October 2019 lists many areas where failures occurred both before and during the Grenfell Tower fire within the design, construction, operation, maintenance, fire-fighting, communication and cooperation between the emergency services on the night in question. What has struck me most reading the Report Overview has been just how many instances of failure occurred in this tragedy with almost no area free of some form of defect. From failures of the Tenant Management Organisation (TMO), to failures of the Local Authority, the Royal Borough of Kensington and Chelsea (RBKC), to design and construction defects in the external cladding and fire cavity barriers, to defects in the Building Regulations Approved Document Part B Volume 1 (Residential Dwellings), and then onto failures on the night in question with the lack of provision of plans of the building, of fire-fighting lifts that couldn’t be taken under control, to emergency service radio failures, to ineffective fire doors and to a failure of cooperation between the three main emergency services (the MPS, LFB and LAS), where each declared ‘major’ incidents at different times during the night without informing the others (to some degree preventing the RBKC from enacting their obligations under the Civil Contingencies Act 2004), and lastly, onto the TMO whose own emergency plan was not enacted and anyway was 15 years out of date.
The Grenfell Tower Inquiry Phase 1 Overview Report is only the beginning of Sir Martin Moore-Bick’s Inquiry concentrating largely on what happened on the night in question. The Phase 2 review remains on-going but of course has been affected by COVID-19 restrictions throughout 2021 and into 2022 and as such is behind its original reporting programme. It currently expects to report its findings around the latter part of 2022 if its current programme remains on target. The Phase 2 Report is expected to cover mainly the building itself, and will typically cover areas including the decisions leading to the use of highly combustible ACM rainscreen panels and combustible insulation on the outside face of the refurbished tower block, the marketing, testing and certification of materials used in the refurbishment, the role fire doors played in the ensuing fire, the revised window arrangements installed as a part of the refurbishment (which ultimately appears to be reason why fire initially spread to the outside face of the building), the operation of the fire-fighting lifts during the emergency, and the role played by the London Fire Brigade. The Inquiry has reported that some areas no longer require further investigation and this includes the role the escape stairs played during the fire, whether the supply of gas played any part in the fire (it didn’t – its contribution was minimal) or whether the fire was caused by a surge in the supply of electricity to the Tower, which has been discounted as there is no evidence that this occurred.
Building a Safer Future
If you work as a professional within the construction industry and you have not read Dame Judith Hackitt’s review ‘Building a Safer Future’ published in May 2018 reporting on the regulatory regime surrounding the construction industry at the time of the Grenfell fire, then I would strongly urge you to do so. The report pulls few punches and describes the industry that we all work in as having cultural issues across the sector, which she describes as a ‘race to the bottom’, caused either through ignorance, indifference, or because the system does not facilitate good practice. Dame Judith goes on to say that the regulatory system covering high-rise and complex buildings was ‘not fit for purpose’ and that there were ‘deep flaws in the current system’ which need to undergo significant if not wholesale reform. These are statements that we must all read, listen and react to if we are not to become secondary and irrelevant in the business world we have inherited and strive to work in. These are not small criticisms – they are game changing remarks that must be respected and we as an industry must come back with solutions to try to change our roles and responsibilities for good so that a fire the likes of Grenfell Tower is not capable of happening again.
Fire Safety Act 2021
This Fire Safety Act received Royal Assent on 29 April 2021 and makes provision about the application of the Regulatory Reform (Fire Safety) Order 2005 where a building contains two or more sets of domestic premises and now confers powers to amend that Order in future for the purposes of changing the premises to which it applies. Prior to this the Regulatory Reform Order applied to non-residential properties. The new Act clarifies that the responsible person or duty-holder for multi-occupied, residential buildings must now manage and reduce the risk of fire for:
- the structure and external walls of the building, including cladding, balconies and windows;
- entrance doors to individual flats that open into common parts.
The Act also provides a foundation for secondary legislation to take forward recommendations from the Grenfell Tower Inquiry Phase 1 report, which stated that building owners and managers of high-rise and multi-occupied residential buildings should be responsible for a number of areas including:
- regular inspections of lifts and the reporting of results to the local fire and rescue services;
- ensuring evacuation plans are reviewed and regularly updated and personal evacuation plans are in place for residents whose ability to evacuate may be compromised;
- ensuring fire safety instructions are provided to residents in a form that they can reasonably be expected to understand;
- and ensuring that individual flat entrance doors, where the external walls of the building have unsafe cladding, comply with current standards.
Draft Building Safety Bill
The draft ‘Building Safety Bill’ issued for consultation in July 2020 is the Government’s response to Dame Judith Hackitt’s overreaching review of the regulatory framework of the construction industry as a whole and represents a wholesale proposal of reform under which clients, designers, contractors and suppliers will be required to work in the future. The Bill is expected to become law sometime in 2023 and the changes enshrined by the Bill will have far reaching consequences on many aspects of the construction industry in order to provide for improved building and fire safety aspects of high-rise residential buildings in particular, with the aim that residents of those buildings will be safer in their homes. This is largely expected to be achieved by the introduction of accountability in the design typically of ‘higher-risk’ buildings, making it clear where the responsibility for health and safety risks lie throughout the design, construction and occupation of buildings. These requirements are to be backed up by tougher sanctions for those who fail to meet their obligations.
To begin with the draft Bill proposes the role of a new national Building Safety Regulator sitting within the Health and Safety Executive and accountable to the Secretary of State for Housing, Communities and Local Government. The role of the Regulator comes with wide ranging powers for the implementation of the new regulatory regime, for over-seeing works on ‘higher-risk’ buildings and the authority to approve, stop, or provide for special measures on building projects that fall under its powers. This is to be achieved by establishing three advisory committees with whom the Regulator will consult on building, competence and resident representation. The Regulator will also oversee change to both Local Authority Building Control and independent Approved Inspectors by the implementation of codes of conduct, disciplinary procedures and suspension of registration if felt necessary. Approved Inspectors’ functions are to be transferred to registered building control approvers.
Part 3 of the draft Bill proposes the establishment of competency requirements on ‘dutyholders’ who work on ‘higher-risk’ buildings, typically including those we have become used to under the CDM Regulations, being clients, designers and contractors. This duty falls not just to those undertaking the works but also to those appointing them. It is expected that a new ‘gateway’ system of checks at the early planning and design stages, pre-construction stage and pre-occupation stage will provide evidence that fire and other safety matters have been considered, that proposed works meet the functional requirements of the Building Regulations and that a ‘golden thread’ of digital information is provided to building owners and managers but that is also in part made available to residents, tenants and leaseholders to review at any time. It is expected that the above requirements will be further set out in secondary legislation expected to be passed following the bringing into law of the Bill.
The draft Bill also establishes two further new roles – those of the Accountable Person and the Building Safety Manager. The former role is for a body or individual to be legally responsible for the safety of ‘higher-risk’ buildings, who will have responsibilities over either common parts of a building or a repairing obligation in respect of those parts. This role will require the Accountable Person to have on-going obligations to assess, review and prevent fire and other safety risks within a building and to provide updated information on those risks and then to apply for a Building Assurance Certificate before a building can be occupied. The Accountable Person must also appoint a Building Safety Manager being the person responsible for the day-to-day management of fire and structural safety in a ‘higher-risk’ building. These two roles are required to proactively engage with residents in providing them with key information about all aspects of their building including design, construction and on-going repair and maintenance issues. The Bill also provides for residents to cooperate with the Building Safety Mangers, to keep their properties in good repair and not to damage fire safety aspects or equipment within the building. Breaches of the building safety regime and breaches by dutyholders of their safety obligations are to become criminal offences, whilst breaches of the Building Regulations are to become punishable for up to 10 years (extending the current period for such offences from 2 years).
Lastly, Part 5 of the draft Bill proposes:
- the establishment of a new Homes Ombudsman to allow for complaints to be made by residents where they feel their complaints have not been dealt with by their Landlord;
- for the Secretary of State to establish a new regulatory regime for the marketing, testing and supply of construction products in the UK;
- and for the Architects Act 1997 to be amended to provide for monitoring of the competence of architects. Whilst architects are currently ‘expected’ to be competent to undertake their works under their ARB Code of Conduct, they are only required to be monitored by their professional body, the RIBA, not by their regulatory body – this will now change.
Much of what is proposed in the draft Bill is still required to be enacted by way of secondary legislation and it is unclear how long such legislation will take to be brought in and how and when it will apply to both new and existing buildings that fall under its scope. What is clear is that nearly some 4 years after the Grenfell tragedy our industry as a whole does not yet have an agreed way forward to provide confidence to others that we are fully in control of what we are doing and with the reporting from Phase 2 of the Grenfell Tower Inquiry still awaited we do not know exactly what other consequences may still be playing out that will affect the way that we as clients, designers, constructors and suppliers will have to change the way we work to ensure the buildings we design, construct and refurbish are safe for their occupiers and users.
This article was written in June 2021.