In this article we consider the RICS form EWS1: External Wall Fire Review (“EWS1”) and what it means for Tall Buildings (that is buildings over 18 meters in height) owners, particularly those who have seen their sales (and those of their leaseholders’) disrupted or cancelled as a result of investigations undertaken on the recommendation of Advice Note 14 (“AN14”).
Update: on 20 January 2020, the Government published an Advice Note that supersedes and updates the advice contained in Advice Notes 1-22 and can be found here. We anticipate that the EWS1 Form may be updated to cover all multi-storey and multi-occupied buildings, rather than just Tall Buildings.
Before we look closely at EWS1 it is important to remind ourselves what AN14 was intended to do. First and foremost AN14 provides guidance in terms of what a Tall Building owner should do in order to satisfy the obligation to take reasonable fire precautions as required by the Regulatory Reform (Fire Safety) Order 2005 (“the RRFO”). As readers will be aware, the primary purpose behind the obligation to take reasonable fire precautions is to ensure, through the assessment of relevant risks, that the building is safe for residents.
In the opinion of those who drafted AN14, it is necessary to investigate the external wall system in a Tall Building in order to determine whether it is safe. If the external wall system contains material that is not of limited combustibility and has not passed a BS8414 test (which would demonstrate compliance with the functional requirements of the Building Regulations by another means) then advice should be taken and potential remediation measures carried out. Irrespective of whether the external wall system contains material of limited combustibility or not, AN14 recommends that a Tall Building owner also check the installation of cavity barriers to ensure these have been fitted correctly or at all.
Although it is easy to criticise the guidance provided in AN14 as not being in accordance with the general understanding of the RRFO, it is clear, following the Queen’s Speech in December 2019, that the RRFO is going to be amended to include an express obligation to check external wall systems. AN14 will, therefore, become a legal obligation in due course.
As a result of AN14 and of Tall Building owners wishing to check compliance with the functional requirements of Building Regulations, the industry has discovered a serious and widespread problem with the design and construction of external wall systems in Tall Buildings – particularly in relation to the use of readily combustible cladding systems, forms of insulation and defective cavity barriers. This has in turn caused lenders and valuers concern when it comes to deciding how to value a Tall Building (and individual properties therein) or whether the security offered by a purchaser is worth lending against. It is for this reason that the mortgage lending industry along with assorted valuers and insurers have sought, as a pre-condition to offering their services, confirmation that the steps recommended in AN14 have been carried out and the Tall Building is safe or at least does not present a significant fire safety risk. This in turn has had the consequence of both buyers and sellers being unable to dispose of or obtain properties given the concerns of the mortgage lending industry in particular.
EWS1 was devised as a means of trying to provide mortgage lenders in particular with the comfort necessary to lend knowing that the external wall system has been deemed by a competent professional not to present a fire risk. The question is, does it achieve that?
It is important to note that EWS1 is not intended to be an alternative to AN14 for Tall Building owners. It is simply a means through which a Tall Building owner is able to present information (which it may already have obtained for the purposes of AN14) to a mortgage lender that records “in a consistent manner what assessment has been carried out for the external wall construction” of Tall Buildings and for that information to be certified by an appropriate professional.
EWS1 contains two options for recording in a summary form the findings of the competent professional undertaking the assessment for the Tall Building owner.
The first (Option A) applies where the ‘primary materials’ (i.e. the cladding material and the form of insulation) used in the external wall system are known to be of limited combustibility (as defined in BS9991:2015). Under this option a competent professional (it need not be a fire engineer) will have to certify that the external wall system contains materials of limited combustibility that do not support combustion. In addition to this the competent professional is required to certify that cavity barriers have been installed correctly within the external wall. Finally, having satisfied themselves of both these issues, the competent professional is then required to consider whether any attachment to the external wall (such as balconies) contain no significant quantities of combustible materials or require remedial works.
The second option (Option B) applies where the ‘primary materials’ includes material that is not of limited combustibility. Under this option a fire engineer (or equivalent) is required to confirm through an appropriate risk assessment that the fire risk is sufficiently low or that remedial works are required. In terms of reaching that assessment of the risk, EWS1 provides that the fire engineer is required to consider whether the external wall system:
- resists the spread of fire and smoke so far as is reasonably necessary to inhibit the spread of fire within the building;
- is constructed so that the unseen spread of fire and smoke within confined spaces is inhibited; and
- adequately resists the spread of fire over the walls having regard to the height, use and position of the building.
To put it another way, the fire engineer is being asked to certify that the building complies with the functional requirements of the Building Regulations applicable to the building.
It is clear that EWS1 is no panacea to AN14 or to the current difficulties caused within the mortgage lending market in particular. It does not provide a simple or straightforward means of assessing whether an external wall system is safe. All of the processes that a Tall Building owner has to undertake to satisfy AN14 (and consequently the RRFO when amended) will have to be undertaken in order to provide the certification required under EWS1. Those processes will inevitably involve (not least due to the often poor nature of as-built information) adequate levels of opening up and testing of materials where required. It is difficult to envisage a situation where any competent professional will be willing to provide the requisite certification in circumstances where detailed physical inspections have not been carried out.
What it does do is provide a readily concise format for presenting in a consistent manner the crucial findings of a competent professional in relation to an external wall system in Tall Buildings.
To put it another way, it is an exercise in presentation, not of substance.
For more information on the EWS1 External Wall Fire Review, please contact either Partner Mark London, or Solicitors Michael Wells and Junaid Tariq.