ACM cladding has been at the forefront of criticisms of the Grenfell Tower since the tragedy in June 2017. We have seen the Barbara Lane report attacking construction issues with fire stopping and so forth. We have seen the Judith Hackett report criticising the building regime as flawed and unfit for purpose. And we have had the start of the Public Inquiry identifying the factors which conspired to create the perfect storm that fateful day in June 2017. So what now for the hundreds of ACM clad buildings across the UK?
Historical position
Until recently the only legislation with enforcement teeth for anything fire related was the Regulatory Reform (Fire Safety) Order 2005 (FSO).
From an enforcement point of view, the FSO is the province of the relevant Fire & Rescue Authority which has powers to ensure buildings are safe for occupiers. These powers have led to expensive short term measures across the country including waking watches pending long term decisions about cladding replacement for the hundreds of high rise buildings containing ACM. Article 3 obligations are enforced against the Responsible Person, which is likely to be a managing agent or some form of residents management company rather than the original developer or current building owner. There is no straightforward attractive route for achieving compulsory cladding replacement under the FSO so the position has stalled for many buildings whilst discussions or litigation ensues between owners, developers, contractors, architects, cladding advisors, fire experts, residents, managing agents and NHBC.
James Brockenshire’s new route to force replacement of ACM cladding and other items
The Government is trying to provide some enforcement teeth in an easy format through James Brockenshire’s recent amendment to the Housing Act 2004 to specifically include purpose-built residential flats above 18 metres high with ACM cladding in the new Housing Health & Safety Rating Scheme (HHSRS) Operating Guidance to Local Authorities.
Local Authorities are already required to carry out an assessment of housing conditions to see whether any category 1 or 2 hazards exist. The new HHSRS Operating Guidance sets out how Local Authorities should carry out those inspections with specific regard to ACM cladding and how they should work with the relevant Fire & Rescue Authority in assessing the fire risk element. Any category 1 risk should lead to mandatory enforcement action because it is expressed as a duty to take enforcement action. Any category 2 hazard gives the authority the power to take enforcement action. The assessment is wider than simply ACM cladding because it is expected to take into account fire compartmenting, alarms and fire exits amongst other things. This will pick up some of the construction phase workmanship issues that are becoming evident on many high rise buildings being looked at by Fire & Rescue Authorities and surveyors nationally.
Enforcement powers for Local Authorities to recover cladding replacement costs from building owners
Enforcement action under the Housing Act 2004 includes a range of options including Improvement Notices, Prohibition Orders, Hazard Awareness Notices and includes powers to undertake emergency remedial action and to recover the expenses of taking such action.
In the original Housing Act 2004, there are powers for the Local Authority to recover expenses reasonably incurred in taking emergency remedial action i.e. where the Local Authority has carried out the work required under an Improvement Notice or Prohibition Notice. The new addendum specifically extends to replacing ACM cladding and being able to recover the costs of doing so from building owners. But interestingly it is not just limited to cladding, so it could include fire stopping and fire compartment remediation work or replacement/upgrade of alarms and sprinklers. Principles of reasonableness will undoubtedly apply here so there will be litigation over what was reasonably required by the LA to be undertaken to negate the hazard and LAs will have to be careful not to stray into realms of upgrade since the Housing Act’s purpose was to ensure minimum safety standards in residential buildings not rewrite those standards.
What is clear out of all this, is a determination by the Government to get building owners to cough up for cladding replacement. There is even going to be a Joint Inspection Team taskforce to provide support to LAs to undertake HHSRS assessments and give them confidence to take enforcement action. Or to put it another way, big brother will be watching LAs and prodding them to take action whether they like it or not…