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Important changes following the introduction of the Fire Safety Act

The Fire Safety Act received Royal Assent on 29 April 2021 and will shortly be on the statute books. Mark London and Michael Wharfe look at what is in store.

The Act ushers in a significant change to the Regulatory Reform (Fire Safety) Order 2005 (the “RRFO”) so that a responsible person is now required to assess the safety of a building’s external wall system (including attachments such as balconies) on any building with two or more residential premises. The Act also introduces a requirement to assess the safety of a building’s structure and all doors between the domestic premises and the common parts.

The extension of the risk assessment regime to cover external wall systems (in particular) will have profound consequences for building owners. As a result of the Grenfell tragedy and the subsequent investigations that have been undertaken, we have encountered a myriad of problems and defects with external wall systems in buildings above and below 18m in height. From the evidence we have seen, it is abundantly clear that the standards of construction in external wall systems (and compartmentation generally) are not materially different in buildings below 18m. It follows that as external wall systems are checked in buildings of all heights, owners will more than likely find defects that will need rectifying. Risk assessments of external wall systems (in particular) may require the implementation of immediate mitigation measures or remedial works in order to ensure that residents are safe.

It is therefore vitally important to remember that a failure to carry out a suitable and sufficient risk assessment, and to comply with its recommendations or requirements within the time frames specified, can constitute an offence and become the subject of enforcement action or prosecution by the relevant authority.

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External Wall Systems

In order to determine whether the external wall system is ‘safe’ for residents and users of the building it will be necessary to assess the nature of the materials comprising the external wall and the state of the passive fire protection (cavity barriers/closers, fire stopping and compartmentation generally). It is likely that this will have to be undertaken by way of intrusive survey, unless accurate as-built records and evidence of compliance have been retained, which in our experience is most unlikely for building constructed prior to Grenfell. Given that defects in passive fire protection often arise due to a combination of poor workmanship and design, it will not generally be enough to rely on as-built information alone.

The Act also provides that “…proof of a failure to comply with any applicable risk based guidance may be relied upon as tending to establish ….[a] contravention.”

An applicable risk based guidance that is currently out for public consultation is the draft PAS 9980, which sets out a code of practice for appraising and assessing the external wall construction and cladding of existing blocks of flats. PAS 9980 is not designed to determine whether the external wall system has met the functional requirements of the Building Regulations, but is designed to assess the risk to the safety of residents and others in a holistic way. Andrew Mellor of PRP discusses PAS 9980 here.

Fire Doors

The duty to assess extends to considering the risk of fire around entrance doors between individual premises and common parts, an area of risk highlighted in the Grenfell tragedy and also a factor in the recent fire at New Providence Wharf in East London. The extension to assess fire doors builds on the MHCLG’s consolidated note, issued in January 2020, which recommended that building owners check whether the fire doors have been adequately maintained, and whether they meet the fire and smoke resistance performance contained in the Local Government Association Guide – “Fire Safety in Purpose Built Blocks of Flats”.

What does the change in the RRFO mean for owners of residential buildings?

The time frame for undertaking a risk assessment of external wall systems is not prescribed, but must be undertaken ‘regularly’. Given the nature of external wall systems, it is unlikely that a regular assessment will require repeated invasive inspections over the lifetime of the building unless material changes are made to the building that impact on the external wall system. This means that good detailed records must be kept of the external wall system, to enable future risk assessments to be undertaken efficiently, particularly if our recognition or understanding of risks changes over time.

A responsible person will have to look carefully at their existing building stock, carry out an assessment of those buildings which present the greater risk, and risk assess those first. A responsible person, might, for example, take the view that timber framed buildings over 11m, but under 18m, might be considered high on the list. Ultimately it will be a matter of assessing the risk to resident safety based on the nature of the building, its location, height and the material used in its construction. That is no easy task, and one in respect of which two reasonable building owners could easily form different views.

The concerns

While the Act is a welcome addition to building safety law, it has been introduced at a time when resources are stretched and expertise is limited. Although PAS 9980 anticipates that its users will not necessarily be fire engineers, the complexities of assessing risk in external wall systems mean that in some cases it simply will not be possible to undertake a risk assessment without having the expertise and experience of a fire engineer. Quite who is going to carry out the assessments and how they are going to persuade their PI insurers to cover them, remains to be seen.

In our view it is inevitable that more widespread and extensive risk assessing of external wall systems will lead to more remedial work across the board, and therefore more expense. While it may be possible to recover some of this from contractors or designers responsible for any defects identified, the lion’s share of responsibility to cover these cost may well ultimately fall on leaseholders. At a time when many leaseholders find themselves trapped in buildings where remediation is required to external wall systems, the Act will no doubt add to that list.

Mark London and Michael Wharfe are partners at Devonshires.

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