On 14 August 2018, the government’s consultation on whether to ban the use of combustible cladding in high-rise residential buildings closed.

This follows the anniversary of the Grenfell Tower tragedy in which 72 people lost their lives. The consultation will decide whether to amend Building Regulations to prohibit the use of combustible materials or whether to amend the non-mandatory guidance that accompanies the Building Regulations.

Following investigation into flammable cladding, numerous high rise residential buildings have failed the government’s new fire safety test. Previously the test only concerned the safety of cladding on buildings whereas the new test determines whether the cladding, filling and insulation in conjunction with one another is safe.

In the case of Firstport Property Services Ltd v Various leaseholders of Citiscape LON/00AH/LSC/2017/0435, leaseholders of the Citiscape block of flats in London have been asked to fund the replacement of their buildings cladding, amounting to a £2 million bill. It has been claimed that the costs are payable under service charges from the leaseholders. There are not currently any enforcement powers to force freeholders to pay for such costs.

Notably the cladding inthe Hanover Tower block in Sheffield has now been removed as it also failed the Government’s new fire safety test, as confirmed by Sheffield City Council. A group has been set up with the tenants to look at the options for replacing the cladding.

The Regulatory Reform (Fire Safety) Order 2005 covers fire safety in buildings containing flats. The fire safety requirements only apply to the communal parts of the building. The meaning of general fire precautions under the order include, amongst others;

  • measures to reduce the risk of fire on the premises and the risk of the spread of fire on the premises;
  • measures in relation to the means of escape from the premises;
  • measures for securing that, at all material times, the means of escape can be safely and effectively used and;
  • measures in relation to the means for detecting fire on the premises and giving warning in case of fire on the premises.

As numerous high rise residential buildings have failed the new fire safety test it is likely the buildings are also non-compliant with the Regulatory Reform (Fire Safety) Order 2005 and do not have the appropriate measures in place to reduce the risk of a fire. Both the new fire safety test and the Regulatory Reform (Fire Safety) Order 2005 have to be complied with.

The case of R v Draper (Joseph) [2011] EWCA Crim 2786demonstrates the consequences of failing to comply with fire safety regulations when total fines of £135,000 against a landlord were found to be justified for serious breaches of the Regulatory Reform (Fire Safety) Order 2005 which involved failing to maintain fire extinguishers and the absence of self-closing devices on front doors of flats. The Judge decided that the fine was not excessive following a fire as the deficiencies caused considerable risk to occupants.

For more information or to discuss a potential dispute of this nature, please contact Rob Cooke, Partner in the Dispute Management Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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