New legal requirements banning combustible materials in cladding

Summary

The Building Regulations will be amended from 21 December 2018 to ban the use of combustible materials in the external wall of residential buildings (including hospitals, residential care premises, dormitories in boarding schools and student accommodation) at least 18 metres above ground level in England. The ban will apply to new building work and existing buildings which will be subject to a change of use to the affected category of building or material alterations. The Government has also announced remediation measures in relation to existing buildings.

Introduction

Last Thursday 29 November 2018 James Brokenshire, the Secretary of State for Housing, Communities and Local Government, issued a written statement announcing the Government’s further responses to the tragedy of the Grenfell Tower fire (last mentioned in Law-Now http://www.cms-lawnow.com/ealerts/2018/07/insurer-agrees-to-meet-costs-for-grenfell-style-defective-cladding?cc_lang=en).

The Government is determined to bring about a fundamental change to ensure that residents of high-rise buildings are safe and feel safe and is seeking to deliver that change by addressing the issues raised by Dame Judith Hackitt in her Independent review of Building Regulations and Fire Safety.

Ban on the use of combustible materials in the external wall of buildings

The Government had previously announced a ban on the use of combustible materials in the external walls of new buildings over 18 metres containing flats, as well as new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres. Regulations were laid on 29 November amending the Building Regulations to give legal effect to the ban, which comes into effect on 21 December 2018 for buildings in England.

The new regulation applies to any building with a storey (not including roof-top plant areas or any storey consisting exclusively of plant rooms) at least 18 metres above ground level and which contains:

• one or more dwellings; or
• an institution;
• a room for residential purposes (excluding any room in a hostel, hotel or a boarding house).

This includes residential blocks of flats, student accommodation, care homes, sheltered housing, hospitals and dormitories in boarding schools with a storey at least 18 metres in height.

The reference to “above ground level” in relation to a storey means above ground level when measured from the lowest ground level adjoining the outside of a building to the top of the floor surface of the storey.

The new regulation requires that materials (in new building work or material alterations) which become part of an external wall or specified attachment (including any part of balconies, solar panels and sun shadings) of the relevant building achieve European Classification A2-s1, d0 or A1 (classified in accordance with BS EN 13501-1:2007+A1:2009 entitled “Fire classification of construction products and building elements), except for certain components where non-combustible alternatives are currently not available. Such components include window frames and glass, door frames and doors, electrical installations and the roof (subject to exceptions).

Also where the use of a building is changed such that the building becomes a building of the type described above, the construction of the external wall, and specified attachments, must be investigated and, where necessary, work must be carried out to ensure they only contain materials achieving European Classification A2-s1, d0 or A1, other than those excepted as above.

While the new regulation comes into force on 21 December 2018, there are transitional provisions by which it will not apply where a building notice or an initial notice has been given to, or full plans deposited with, a local authority before 21 December and either the building work to which it relates: (a) has started before that day; or (b) is started within the period of two months beginning on that day.

There will be joined up reviews across Government of fire safety guidance. The Department for Education is also committed to ensuring schools over 18 metres, built as part of their centrally delivered build programmes, will not use combustible materials, in line with the terms of the ban, in the external wall.

Remediation

As of 31 October 2018, 289 private sector high-rise residential buildings have been identified as having unsafe Aluminium Composite Material (ACM) cladding. The Government has had remediation completed in 19 cases; started it in 21 cases; and there are plans in place for a further 98 buildings. The Government is focussed on ensuring that building owners face up to their responsibilities to undertake necessary remedial works and has announced measures to support local authorities to take action where remediation plans are not clear.

There is a new addendum to the Housing Health and Safety Rating System operating guidance, which provides specific guidance on the assessment of high-rise residential buildings with unsafe cladding and will help local authorities to make robust hazard assessments and boost their ability to take decisive enforcement action. The Joint Inspection Team, hosted by the Local Government Association, will provide support.

The Government is also offering full support to local authorities to take enforcement action against the owners of buildings who refuse to remediate unsafe ACM cladding. This includes financial support if the local authority needs to carry out emergency remedial work, and local authorities will recover the costs of such support from the owner.