As first published in Social Housing on 30 January 2019.
New government guidance on fire safety of external wall systems was published in December. Mark London walks through the implications and how RPs should act
The government published Advice Note 14 in December 2018, to the concern of many in the housing and construction sectors. This note seeks to clarify the government’s position on duties owed by tall building owners to take fire precautions in relation to external wall systems in residential buildings over 18 metres in height (referred to hereafter as “tall buildings”). In doing so, the government has seemingly snuck new and retrospective obligations in through the back door.
Fire risk assessments
The advice note rightly identifies that a building owner is a “responsible person” for the purposes of the Regulatory Reform (Fire Safety) Order 2005. As such, building owners are responsible for the safety of their buildings. This includes an obligation to carry out a suitable and sufficient fire risk assessment, which in a residential property is typically limited to those non-domestic parts of otherwise domestic premises (eg common parts, lift shafts, stairwells). Traditionally, those non-domestic parts have not been considered to include the external wall construction.
“It is highly unlikely that a typical fire risk assessor will be qualified to conduct such a review, and we predict that going forward, tall building owners may have to commission a suitably qualified expert to conduct a separate assessment”
The advice note seems to suggest that in addition to the traditional fire risk assessment, tall building owners should be commissioning assessment of the external wall construction. The advice note highlights that the responsible person has a duty to take “general fire precautions”, which includes a requirement to reduce the risk of fire and fire spread.
This broadly defined duty has seemingly been used by the Ministry of Housing, Communities and Local Government (MHCLG) as justification for inferring that the scope of assessments should now include a review of external wall construction. It is highly unlikely that a typical fire risk assessor will be qualified to conduct such a review, and we predict that going forward, tall building owners may have to commission a suitably qualified expert to conduct a separate assessment.
Fire safety of external wall systems
In determining whether or not an external wall system is ‘safe’, the advice note adopts a particularly narrow definition. On existing buildings, the definition of ‘safe’ shall be that the external wall system comprises only materials of limited combustibility or has achieved BR 135 classification by a successful BS 8414 test. In this regard, tall building owners should remember that external wall systems are not limited to external panels; they also include insulation, cavity barriers and other aspects of the build-up.
Notably, the definition of ‘safe’ excludes any reference to a fire-engineered solution. This is a curious omission given that the Building (Amendment) Regulations 2018, which came into force on 21 December 2018, do not have retrospective effect and, therefore, a fire-engineered solution remains lawful as a means to compliance for buildings completed, or started, prior to 21 December 2018.
The vast majority of tall buildings constructed in the UK have not been the subject of a BS 8414 test.
“The upshot is that the MHCLG now expects all tall building owners to proactively check the build-up of the external wall construction”
In most instances, compliance would have been sought by applying (as we now know, often incorrectly) the recommendations in Approved Document B to the building regulations. It follows that for most tall building owners, having previously assumed that the materials used in their external wall construction were compliant, they will now be unable to demonstrate that the external wall system is ‘safe’.
Even in cases in which an external wall system comprises only materials of limited combustibility or the building owner is able to demonstrate compliance by reference to a BS 8414 test, it will still be necessary to check that the system is ‘safe’. In cases where a BS 8414 test has been carried out, this means checking that the external wall construction exactly matches that which was tested. In cases where all materials in the external wall are of limited combustibility, this means checking whether the system has been properly installed and maintained.
The upshot is that the MHCLG now expects all tall building owners to proactively check the build-up of the external wall construction, the materials used, whether it has been installed and maintained correctly, and where relevant, whether the construction is consistent with any BS 8414 test.
In order to meet this obligation the following steps will be necessary:
- Identify your tall buildings: Many of our clients are responsible for hundreds, if not thousands, of residential buildings. It will be necessary to identify which of these are “tall buildings”.
- Prioritise your investigations: If you have several tall buildings, it may seem difficult to know where to start. You may consider the number and vulnerability of occupants, level of risk, and presence or otherwise of existing fire suppression measures, and the requirements of any insurance cover.
- Locate all records and as-built information in respect of your tall buildings: You will need to understand the system’s build-up. As-built drawings should contain this information, and if you do not hold copies, you should request them from someone who might (eg the employer’s agent or the original contractor).
- Confirm what materials make up the system: Review your drawings and other technical information to determine what materials make up the system, including external panels, frames, insulation and cavity barriers.
- Seek advice on whether these materials are of ‘limited combustibility’: Materials of limited combustibility are defined by reference to the building regulations. Seek expert advice if you have any uncertainty about the classification of materials in your system.
Your next steps will depend on whether or not your system includes only materials which are of limited combustibility, and we consider both scenarios below.
Scenario 1: “My system only includes materials of limited combustibility”
While this is good news, it is not the end of your obligations under Advice Note 14. It will still be necessary to ensure that the system has been installed and maintained appropriately. We would recommend the following:
- Identify whether you require external expert advice: If you do not have suitably qualified internal resource to properly assess the safety of your systems, we would recommend seeking the advice of appropriate experts.
- Ensure that the design of your system was appropriate: If your system has not been designed properly in the first place, there is every possibility that the subsequent installation will not be ‘appropriate’ or considered ‘safe’.
- Inspect the as-built construction of your tall buildings: Even if you have a compliant design, it will be necessary to ensure that the system has been correctly installed and maintained. While not expressly stated in the advice note, any inappropriate installation will need to be rectified.
Scenario 2: “My system contains materials that are not of limited combustibility”
This will present a much greater likelihood that your tall building will not be considered ‘safe’. In this situation, we would recommend the following steps:
- Confirm whether the system was subject to a successful BS 8414 test: This is very rare, but if you are one of the lucky few, it will be necessary to ensure that the system was installed in accordance with that test and also to carry out the steps outlined above in respect of systems only containing materials of limited combustibility.
- If not, seek immediate professional advice: In the worst case scenario, the advice note recommends seeking immediate advice from appropriate professionals about what you should do next. This may include obtaining an updated fire risk assessment, implementing costly mitigation measures, and potentially carrying out remedial works until the system can be considered ‘safe’.
The expectation is that the guidance included in Advice Note 14 will be incorporated into the updated regulatory regime that is expected later this year. In the circumstances, we would not recommend that tall building owners delay in taking the outlined steps.