Following Dame Hackitt's Review of the Building Regulations and Fire Safety, the government announced that it would consult on banning flammable cladding. The consultation is now ongoing and closes on 14 August 2018.
The current regime
The current legislative position is outlined in the Building Regulations 2010, which require that external walls must adequately resist the spread of fires over walls and from building to building. Approved Document B provides two ways to ensure compliance, either each component must meet the standard for combustibility or the whole installed system must resist fire to the levels provided by BS 8414.
The Approved Document provides how testing should be carried out, however the system of "desktop studies" was criticised in the aforementioned Review and a separate consultation by the government recommends formalising the assessment system:
i) Extended application assessments following relevant standards
ii) Where there is no standard then BS EN 15725:2010, dealing with extended application reports on fire performance for construction products, should be followed. This means test data supporting the assessment must be referenced in the report, ensuring transparency
iii) A new standard for the extended application of BS 8414 results, addressing cladding systems
iv) Assessments to be carried out only by "notified bodies" under the European Construction Products Regulation or accredited laboratories with UKAS.
These recommendations are not limited to products intended to be employed on high rise buildings, although it is believed that this is where the changes will have the greatest impact. This immediately highlights the extent to which the Hackitt review is likely to be read in a purposive fashion and its significant proposals are likely to have a broader impact on industry practice beyond high rise buildings. It is also likely to mean less range and flexibility of products in the market, at least in the short term, as only those products which meet the more onerous testing or assessment criteria are permitted.
In a comment likely to be helpful to those relying on tests carried out under BS 8414 "The Government stands by the advice issued by the Expert Panel that wall systems that have met BS 8414 can be considered to be safe if they have been correctly installed and maintained", although elsewhere the consultation states that the tests are being reviewed by the relevant technical committee and so may be subject to change in the near future.
Despite the lack of official concern regarding existing installations the Consultation nevertheless recommends a ban on future combustible cladding as "undoubtedly the lower risk option". The proposed ban would:
- Amend the Building Regulations 2010, meaning failure to comply will not just breach guidance (as in the case of an Approved Document) but will be a criminal offence attracting potentially unlimited fines
- Remove the option of assessments in lieu of testing, i.e banning desktop studies, subject to the results of the above consultation
- Apply to buildings 18m or over to align it with other Building Regulations guidance. This is again a more onerous threshold for business than the 10 storey standard proposed by Dame Hackitt, the ban will apply through the entire height of the wall
- Apply to residential blocks but not to hotels or offices
- Ban materials that are not categorised as Class A1 (no contribution to fire at any stage, i.e. metal, stone, glass) or A2 (no significant contribution to fire at any stage, i.e. plasterboard) under the BS EN 13501 standards for combustibility
- Cover the complete wall assembly including inner leaf, insulation, façade and cladding
- Apply to the products used in construction of balconies and window spandrels
- Exempt components where there are no practical A1 or A2 components available or where the risk of fire is so minimal that banning the use of combustible materials would be disproportionate. Examples given are internal wallpaper and paint, window frames, gaskets, seals, vapour membranes, surface finishes and laminated glass
Be introduced without a transitional period, applying in full to products ongoing at the time of its introduction. This is likely to have a significant disruptive effect on supply chains given the long lead-in times for developments and for cladding orders.
It will be noted that the ban goes beyond just banning exterior cladding and applies to all materials used in walls. It also does not ban a specific material – for example Aluminium Composite Materials, going beyond the immediate issues associated with the Grenfell disaster and illustrating how far reaching a prescriptive approach to planning must be to achieve its stated objectives.
An unforeseen consequence of the above approach is likely to be that much greater consideration will have to be given to whether there are practical A1 or A2 solutions available for fittings and services to satisfy the exemption, for example water pipes, electrical cabling etc…are typically made of plastic components, this may have a significant effect on building design and, therefore, on cost.
The consultation is generally typified by an approach which limits the available legislative responses to two clear alternatives, presumably as a result of the desire to address this issue quickly. For example the consultation offers only two solutions, doing nothing or banning cladding, with no consideration of any alternative or innovative solutions.
The ban will not be of retrospective effect in line with the existing Building Regulations, however if new work is done to an existing building then the work must meet the Regulations current at that time and so would be affected by any ban. However it is notable that the review states that "the Fire Safety order, requires that the safety of existing buildings is managed on the basis of regulator risk assessments", and that in respect of existing buildings "a case-by-case risk-based approach to fire safety … is most appropriate". Readers are referred to the Independent Advisory Panel's guidance, which is that the current standard is "a robust test" but which suggests that building owners should take professional advice". The ban will apply in full to remedial works meaning that if existing cladding is replaced work will have to be fully compliant with the Building Regulations.
There is then very little clarity for duty holders from the consultation, reflecting the fundamental conflict between the prescriptive rules-based Building Regulations system and the principle-based Regulatory Reform (Fire Safety) Order on the approach to be adopted with respect to existing buildings fitted with flammable cladding. In effect whilst stating repeatedly that the current test is robust the consultation also implies that where a landlord is aware, or ought to be aware, that his cladding is combustible he would be well served by reviewing his existing fire risk assessments and seeking professional advice. At the very least it would seem that the legislation requires reviewing what, if any, additional control measures can be put in place or whether removal of the cladding is required to ensure that residents are safe.
It will remain to be seen how any transitional periods operate. But there is the significant cost implication of changing plans to accommodate a change in cladding material and also dealing with any impact this may have on thermal rating and making resultant changes to deal with this. There is also the practical issue of significant lead in times for procuring bespoke cladding for the larger developments likely to be affected by any changes.
As this is only a consultation its proposals may be subject to significant change before any legislative reform takes place. However given the clear public, parliamentary and industry desire for this issue to be addressed it seems unlikely that the proposals will be significantly watered down or delayed in their implementation.