Fire safety: perpetual problems and unintended consequences

Posted: 06/07/2020

Ben Robinson and Laura Rowley run through the fire safety issues that haven’t dominated the headlines and provide brief details of the registration process for funding for non-ACM cladding systems.

Following the tragic fire at Grenfell Tower in June 2017, the use of ACM cladding in residential buildings over 18 meters high immediately fell under the spotlight. Subsequently, other external cladding systems have been subjected to scrutiny and criticism.

Advice from the expert panel (established by the Government in the aftermath of the Grenfell fire) issued on 20 January 2020 sought to consolidate and clarify the findings of the investigations undertaken over the past three years. More recently, the Government released its response to the Building a Safer Future consultation and is due to legislate for the reforms through the new Building Safety Bill and further secondary legislation where necessary. Readers will no doubt be aware of these developments, both having been the subject of various articles over the past few months.

What about commercial premises?

It’s probably going too far to suggest that the need to review fire safety in commercial premises has flown under the radar. However, when many of us think of, or read about, safety (in any context) inevitably our thoughts immediately focus on our home.

While this is understandable, it is easy to forget that, pre Covid-19, we traditionally spent a large proportion of our time in commercial premises, be it offices, cinemas, hotels, fitness centres, theatres, etc. In practice, we give little thought to our safety when we enter these buildings, perhaps on an assumption that ‘big business’ is more likely to have reacted quickly to the Grenfell tragedy.

It should be remembered that the Regulatory Reform (Fire Safety) Order 2005 is highly focused on employers’ duties and control of a “workplace”.

Under the 2005 Order, a “responsible person” owes a number of duties, in particular:

• Article 8: a duty to take general fire precautions to ensure the safety of employees and other relevant persons. “Relevant person” is defined in Article 2 as meaning “(a) any person (including the responsible person) who is or may be lawfully on the premises; and (b) any person in the immediate vicinity of the premises who is at risk from a fire on the premises”; and
• Article 12: a duty to eliminate or reduce risks from dangerous substances.

It remains to be seen whether commercial building owners will, in time, face the same level of public and regulatory scrutiny as residential owners.

While the expert panel’s recent advice was plainly directed towards multi-storey, multi-occupied residential premises, notably it recommended that building owners co-operate “with any commercial premises within the building to ensure they do not impose any significant risk”.

Interestingly, the expert panel’s use of the term “residential building” was expressly intended “to cover all buildings that include more than one dwelling and all buildings that have a room for residential purposes as set out in the Building Regulations 2010”. The expert panel’s advice also applies to overnight patient accommodation (eg hospitals).

It will be interesting to see whether this somewhat broad definition of a “residential building” was a deliberate attempt to extend the scope of the recommendations, with a view to bringing commercial owners into fire safety discussions.

In any event, owners of commercial buildings need to take note of the Government’s fire safety narrative and ensure that their own investigations/remedial works are in hand.

Funding for non-ACM cladding

In the March 2020 Budget, the Government announced £1 billion of additional funding to remove unsafe, non-ACM cladding systems from buildings over 18 meters in height. Registration opened on 1 June and will close on 31 July 2020. A formal application stage will follow, which is expected to open by the end of July 2020. Building owners must act quickly as the application stage will be managed on a first-come, first-served basis and will expect applicants to have already taken all reasonable steps to ascertain the construction of the building’s external wall system.

It’s not all about cladding

Prior to Grenfell, more often than not the primary focus of retrospective (ie post-practical completion) intrusive fire safety investigations concerned the adequacy of the fire stopping/compartmentalisation within a building, which is designed to stop the spread of a fire from one area to another. Since fire stopping is necessarily covered up prior to the building becoming occupied, it is inevitably a difficult and disruptive process to subsequently investigate the presence of fire breaks at various places within the completed building.

Although fire stopping hasn’t been given a great deal of room in the recent updates, it remains an important and necessary investigation for a building owner to undertake in order to finalise their fire safety strategy. This is particularly so when adequate Operation and Maintenance (O&M) documentation (or otherwise) is not available, so limiting the ability to review fire safety in a finished building.

Other fire safety issues are hiding in plain sight, such as combustible material used in the construction of balconies, investigating defects in the operation of smoke control systems, and ensuring fire doors leading to shared or communal areas provide adequate fire and smoke protection and are part of a layered approach to fire strategies for buildings.

Building owners need to remember that their experts must take a holistic approach to fire safety to ensure compliance with the statutory regime and recent Government guidance.

Leasehold logjam

Introduced by RICS in December 2019, the EWS1: External Wall Fire Review scheme appeared to be a sensible approach to satisfy residential lenders as to valuation by demonstrating that a building has been built using materials permitted by the latest guidance and that it fully complies with the requisite fire safety standards and procedures.

However, one crucial point has been overlooked in terms of practicality; it has no statutory footing. In other words, there is no obligation on anyone to procure a completed EWS1 form and in only extremely limited circumstances would a leaseholder be able to force a “building owner” or manager to provide one. The effect of this is that leaseholders are being prevented from selling (to anyone other than a cash buyer) or remortgaging as a satisfactory EWS1 is routinely required as a condition of financing or refinancing.

Even where the instruction of an EWS1 is agreed, leaseholders face the further hurdles of cost and significant delay in any investigation (particularly where a suitably qualified person is not already involved), together with possible backlash from fellow leaseholders, who may not be particularly receptive to inclusion of this cost in the next service charge demand. And all that assumes the EWS1 certifies that no remedial works are required.

Urgent Government intervention is needed to ensure that the EWS1 process is the elixir it was intended to be to the property market.

Can RTMs cope with the fire safety crisis?

No one can doubt the rationale of leaseholders wanting to control the management of their own building, but it’s hard to imagine that leasehold directors of right to manage companies envisaged the need to tackle fire safety on this scale when they decided to engage their rights under the Commonhold and Leasehold Reform Act 2002.

Put simply, experienced and sophisticated building owners are struggling to keep up with the dynamic fire safety advice, so it comes as no surprise that RTMs and other managers simply lack the expertise, resource and funding to progress investigations and satisfy their obligations to ensure that their buildings are safe.

Even before Grenfell many RTMs were suffering from liquidity issues and we expect this issue to increase exponentially once full details of remedial works have been ascertained by those tasked with implementing the recommendations and, perhaps moreover, securing the financing from leaseholders or seeking recovery through the service charge.

Landlords previously unconcerned with the day-to-day management of a building may be unexpectedly and involuntarily taking back the reins if RTMs start collapsing under the strain.

This article was published in Estates Gazette in June 2020.

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