Combustible materials and remediation - Government announces "name and shame" from Spring 2020

7 minute read
07 February 2020



This insight was published prior to the Building Safety Act receiving Royal Assent on 28 April 2022. As such, whilst accurate at the time of publication, its contents may have been superseded by the changes implemented by the Act or its related secondary legislation.

You can find a list of all Gowling WLG articles relating to the Building Safety Act here.

Further to our insight Combustible materials and the building (amendment) regulations 2018 - the year in review, the Government has moved swiftly in 2020 to take substantive steps to implement measures that will aim to improve the safety of high rise buildings.

We summarise the key points.

On 20 January 2020, the Ministry of Housing, Communities and Local Government issued a Press Release - New measures to improve building safety standards announcing the following steps.

  1. The HSE will start immediately to establish the new Building Safety Regulator with the power both to oversee the construction and management of buildings affected, and to apply criminal sanctions to building owners who do not comply with the new regime.
  2. The publication of clarified and consolidated advice on safety measures for building owners, including details on sprinklers and fire doors. Paragraph 3.11 suggests that (subject to testing and a suitable fire safety report being obtained) it may not be necessary to replace all combustible materials that have been identified in external wall systems.
  3. The appointment of a construction expert to review remediation timescales in an effort to speed up the process. A new consultation relating to the current combustible cladding ban which includes a proposal to extend the current ban by lowering the current 18m threshold for high rise buildings to 11m and a proposal to introduce sprinklers into all new builds above a height of 11m (approximately 4 storeys) down from 30m. This consultation closes on 13 April 2020.
  4. The Government is considering options for mitigating costs and alternative financing routes for building owners facing the need to carry out remediation work. The stated intention is "[t]o ensure that cost is not a barrier to remediation".
  5. A further consultation - Fire Safety: risk prioritisation in existing buildings - a call for evidence, with the intention of enabling further analysis on first safety risk to assist building owners in the prioritisation of risk. This closes on 17 February 2020.
  6. Grenfell Tower Inquiry Phase 1 report: government response which include details of the next steps including the Fire Safety Bill which will strengthen the ability of the Fire and Rescue Services to taken enforcement action against building owners who have not carried out the correct remediation work. Wide ranging enquiries and reviews are documented in this response such as the detailed consideration of the controversial "stay put" and evacuation advice.
  7. A clear "name and shame" approach - the Secretary of state for Housing, the Rt Hon Robert Jenrick MP stated: "Unless swift progress is seen in the coming weeks, I will publicly name building owners where action to remediate unsafe aluminium composite material (ACM) cladding has not started. There can be no more excuses for delay, I'm demanding immediate action".

Zero tolerance

The public hearings for Phase 2 of the Grenfell Tower public inquiry started on Monday 27 January 2020 and, with its numerous announcements prior to this, the Government has made it clear that non compliance with remediation measures will not be tolerated.

As anticipated, the Phase 2 Grenfell Tower Inquiry hearing is proving to be harrowing. In its opening statement, Celotex Limited (manufacturer and supplier of two insulation products used in the Grenfell refurbishment works) has contended that the designers (Studio E and Harley), contractors (Rydon and Harley) and fire safety consultant (Exova) "all appear to have known that the ACM panels would fail in the event of a fire where external flaming occurred".

Celetox rely on and cite (as an example) an internal Harley email of 27 March 2015 which states: "there is no point in 'fire stopping', as we all know; the ACM will be gone rather quickly in a fire! ... " - startling reading for a lay-person. This will of course need to be considered in context by the Inquiry once all evidence is submitted, but there is no doubt that pressure is increasing on building owners who must carry out remedial works, and this will only increase as the Phase 2 hearings continue, focusing on the circumstances and decisions that pre dated the tragedy at Grenfell Tower - this will include the concerns that had in fact been raised by residents.

The issue of combustible cladding extends beyond ACM, with similar fears raised in relation to the High Pressure Laminate (HPL) cladding and other types of cladding used on numerous other high rise tower blocks.

The Rt Hon Robert Jenrick MP also said:

"This Government is committed to bringing about the biggest change in building safety for a generation. We took action to address the fire safety risks identified following the Grenfell Tower tragedy, and in the autumn we committed to adopting the recommendations of the Grenfell Tower inquiry Phase One report in full. We will shortly be publishing our response to the Phase One report … The focus of this statement will be on the wider programme of building safety reforms and the work that I'm leading to ensure that everyone is safe and feels safe in their own home."

It remains to be seen what the public response will be to any proposed relaxation of the requirement for removal of all combustible materials in an external wall build-up. Following the Grenfell tragedy any move to put cost above the safety of occupiers is not likely to be welcomed. Also, time will tell whether fire safety professionals will be willing to provide the type of independent fire safety report that would support a building owner relying on paragraph 3.11 to avoid the removal of combustible materials from external wall systems.

Whatever the outcome, it is clear that the landscape in relation to building fire safety will continue to evolve for some time yet.

If you have any queries, please contact Sue Ryan or Tom George.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.