For further information, please contact David Weare, Partner, Fladgate LLP (firstname.lastname@example.org)
The announcement by prime minister Theresa May on 28 June 2017 that the cladding used at Grenfell Tower did not comply with Building Regulations is a worrying development in this tragic saga. How defective cladding came to be installed in circumstances where the public rightfully expect construction works to be properly carried out and certified will no doubt be the subject of the public inquiry in due course.
At issue is a type of cladding made of Aluminium Composite Material (ACM). Although ACM cladding is not of itself dangerous, it is important to ensure that the correct type of cladding has been used and/or only used on buildings of a certain height.
At the time of writing, cladding from 120 high-rise residential buildings in 37 local authority areas in England has failed fire safety tests. The problem is not unique to residential accommodation. Following a review of care homes and public and private hospitals following the fire, it is now reported that up to 38 hospital sites have been found to have similar characteristics to those of Grenfell Tower, with nine being identified as at greatest risk. A number of universities are also reported to have identified ACM on their high-rise accommodation blocks, including Nottingham Trent, Bournemouth, Newcastle and Edinburgh Napier.
Paragraph 12.7 of the Building Regulations requires that in a building over 18 metres above ground level any insulation product or filler material (excluding gaskets, sealants etc.) used in external wall construction should be of limited combustibility or Class A2.1. This is the standard against which the Government has been testing cladding.
As there may have been some confusion about the extent of the obligation in the Building Regulations, the Department of Communities and Local Government (DCLG) clarified on 22 June 2017 that the non-combustibility requirement does not just apply to thermal insulation within the wall construction. It extends to any element of the cladding system, including the core of the ACM.
Whilst it will be some time before we fully understand how the fire started or why it took hold in the way it did, audits are being carried out on buildings over six storeys by local authorities, social housing providers, owners and managers of private residential buildings and estate managers in the health and education sectors, among others, to identify whether any panels used in new build or refurbishment works are made of ACM. The current advice for certain notified sectors as to the safety checks to be carried out is as follows:
Whilst the Government is offering free testing of samples for residential blocks, any remedial action to privately owned buildings will be the responsibility of the building owner. If such remedial action is required then a number of potential options are open to recover the costs of the works. This could include through insurance, through the service charge or from the party that specified, installed and/or certified any cladding subsequently found to be defective. The extent to which costs might be recoverable will depend on the relevant insurance policy wording, the terms of any leases and the facts as to how the defective cladding came to be installed. Full details of the costs of investigation and repair should be retained in the meantime.
The current priority is understandably the inspection and testing of cladding on relevant buildings, including the testing of the flammability of the non-aluminium core to which any aluminium sheets may have been bonded. However, the current guidance is pertinent to non-residential buildings over six storeys where ACM has been used. This could include student accommodation blocks, hotels, office and commercial buildings and buildings in the leisure sector.
Owners concerned about buildings in their portfolio can follow the steps outlined at paragraphs 1-4 above to assess the extent of any risks. Should building owners require further comfort even where ACM has not been used, the cladding specification could be reviewed to verify compliance with Building Regulations in light of the updated guidance regarding the non-combustibility of the core of the cladding. Designers, contractors or certifiers of relevant buildings should undertake audits to identify the facts as to how ACM came to be specified, installed and approved.
Updated guidance will no doubt be issued in due course. In the meantime, the inspection and testing of relevant buildings continues.