Fire safety issues post-Grenfell

Answer

The tragedy at Grenfell Tower on 14 June 2017 sadly demonstrated that the fire safety measures in place for housing developments, particularly for high-rise buildings such as tower block flats, were inadequate.

In the independent review led by Dame Judith Hackitt following Grenfell, Dame Hackitt highlighted the key issues underpinning the system failure, including ignorance within the construction industry of the applicable Building Regulations, indifference to the potential consequences, a lack of clarity on roles and responsibilities, and a lack of regulatory oversight. 

In the past 12 months, there has been prominent media coverage of issues relating to fire safety as the consequences of Grenfell continue to be felt: whether it be, for example, EWS1 forms resulting in leaseholders being unable to sell their properties, or the question of who should pay for the required remedial works to properties, the total bill for which is expected to run into the billions.

Fire Safety Act

While the wrangles over the remedial costs between developers, freeholders and leaseholders appear likely to continue for some time, the government has introduced the Fire Safety Act 2021 (the 2021 Act), which received Royal Assent on 29 April 2021 and amended the Regulatory Reform (Fire Safety) Order 2005 (SI 2005/1541) (FSO) with the aim of providing greater clarity in relation to FSO and the obligations it imposes upon the relevant duty-holder/responsible person. The FSO applies to all non-domestic premises but also covers communal areas of residential buildings with multiple homes, for example, the common areas of a block of flats such as the hallways and stairwells.

In respect of residential buildings, the duty-holder/responsible person is generally the building owner (ie, not the individual flat owners). The 2021 Act clarified that, in respect of the communal areas of multi-occupied residential buildings, the duty-holder/responsible person must also manage and reduce the risk of fire in relation to:

• the structure and external walls of the building (eg, cladding and windows); and
   
• the entrance doors to individual flats from the communal areas (eg, from the hallway).

The purpose of the above amendments was to empower the fire and rescue services to be able to bring enforcement action against building owners who are non-compliant. Such powers were unavailable prior to the 2021 Act in relation to the exterior of buildings or beyond the front doors of individual flat owners.

The 2021 Act also provides for secondary legislation to be introduced to further amend the FSO as required to implement additional recommendations arising from the Grenfell Tower Inquiry.

Building Safety Bill

The government is also introducing the Building Safety Bill 2021-22 (the Bill). The Bill was introduced to Parliament in July 2021 and is currently (at the date of writing) at the report stage in the House of Commons.

The Bill is intended to overhaul the current regulatory framework in place in relation to the construction of residential buildings, particularly those considered to be “higher-risk” (ie, buildings with at least two residential units, and are over either 18 metres in height or seven storeys). Fire safety checks will be required by way of a new three-stage gateway which will apply from the outset of a development at the planning stage all the way through to completion to ensure that all stages of construction of the building are compliant with fires safety regulations. Following completion of the building, and on occupation of the building, the ‘accountable person’ (eg, the building owner or management company) will be legally responsible for ensuring building safety.

Whereas the amended Building Regulations and 2021 Act above brought in new regulations and obligations which building contractors, building owners/managers and other parties within the construction industry must comply with, the Bill goes further than this and provides greater powers and rights to individual residents and homeowners. This means that homeowners will have more remedies available to them when it comes to raising fire safety concerns and disputes.

Some of the key changes that may be implemented by the Bill include the following:

• The limitation period under the Defective Premises will be extended from six to 15 years and will apply retrospectively, meaning that home owners will have more opportunities to bring a claim for defective building works (including where a claim may previously have been time-barred). However, the claim under the Defective Premises Act is limited to dwellings that are “unfit for habitation” as a result of inadequate works or materials used, and there are a number of factors that will be considered when determining the state of the dwelling. For example, a dwelling will not be considered unfit for habitation where its condition is as a result of a failure to properly maintain the building (see the case of Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC)).
   
• Section 38 Building Act 1984 (not yet in force) will be brought in which allows a claim for compensation to be made where physical damage has been suffered by any person as a result of a breach of Building Regulations (the limitation period is again expected to be 15 years).
   
• The introduction of a Building Safety Regulator to oversee a new three-gateway procedure for the design, construction and completion of new buildings.
   
• Introduction of the accountable person (mentioned above).
   
• Further amendments to the FSO to strengthen the obligations on building owners in respect of managing fire safety.
   
• Strengthening of the regulatory regime overseeing the use of construction products.

The Bill has undergone amendments since its introduction, and further amendments will likely be made as it passes between the House of Commons and the House of Lords so it is advisory to anyone who has an interest to keep an eye on the Bill as it continues through Parliament.

Is this the solution?

However, recent news would indicate that the Bill may not solve the problem of where liability for any defects identified should lie. With current indications being that the Treasury is unwilling to significantly expand the current fund allocated for the remediation of unsafe cladding on high-rise residential buildings, it is likely that the question as to who funds the works will continue to be the subject of legal proceedings. Secretary of State for Levelling Up, Housing and Communities, Michael Gove, has also written to the residential property developer industry asking companies to agree to fund the currently estimated £4 billion remediation costs of unsafe cladding, and to produce a “plan of action” by early March 2022.

Lawyers advising clients on liability for fire safety defects need to understand not only the contractual position, but also regulatory issues, governance issues and reputational issues. 

Grace Watson (she/her) is a trainee solicitor at Bevan Brittan LLP.