The Inquiry
The Phase 2 Grenfell Tower Inquiry Report (the “Inquiry”) was released on 4 September.
Contents
2. Assimilating Construction Industry Regulatory Arrangements
2.1. The existing regulation of the construction industry is fragmented and complex which has in turn proved to be an obstacle to effective regulation1. By example, fire safety functions straddle three different government departments at present2.
2.2. The Inquiry has recommended that the following functions should be exercised by a single independent body (referred to as a Construction Regulator for simplicity)3:
2.2.1. Regulation, testing and certification of construction products;
2.2.2. Regulation and oversight of building control;
2.2.3. Licensing of contractors to work on higher-risk buildings;
2.2.4. Monitoring the operation of the Building Regulations and the statutory guidance and advising the Secretary of State on the need for change;
2.2.5. Carrying out research and collecting information on matters affecting fire safety;
2.2.6. Accrediting fire risk assessors;
2.2.7. Maintaining a publicly available library of test data and publications.
2.3. The Inquiry envisage the role of the Construction Regulator will drive change that policy is developed in a holistic and coherent way4, and will enable information to be shared more effectively between those responsible for different aspects of the industry5.
1 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.4 2 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.8 3 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.5 4 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.8 5 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.5
3. Reviewing the Definition of Higher-Risk Building
3.1. The basis on which a building is defined as “higher-risk” by reference only to its height is unsatisfactory and arbitrary in nature6.
3.2. The Building Safety Act 2022 defines a Higher Risk Building as a building that is at least 18 metres in height (or has at least seven storeys) and contain at least two residential units7.
3.3. The Inquiry recommended that the definition of a Higher Risk Building is urgently reviewed8.
3.4. Any changes to the definition are likely to account for (among other things):
3.4.1. the nature of a building’s use; and
3.4.2. the presence of vulnerable people in the building9.
3.5. It remains to be seen whether a reduction in the height of the buildings falling within the definition of a Higher Risk Building will be introduced, which would expand the number of properties captured within the legislation.
4. Review of Approved Document B (AD B)
4.1. The guidance in AD B is unsatisfactory, falling woefully short of being ‘prescriptive’ and in reality presenting as no more than guidance. The Inquiry’s view was that AD B lacked the information needed to design buildings that are safe in fire.10
4.2. It is well known in the Construction Industry that professionals considered that compliance with AD B would result in compliance with building regulations. In fact, the existing legislation makes clear that compliance with Approved Documents tends to support compliance with Building Regulations.
4.3. The Inquiry recommended that:
4.3.1. A revised version of the guidance ought to contain a clear warning that the legal requirements are contained in the Building Regulations themselves, and that compliance with the guidance does not necessarily result in compliance with Building Regulations11; and
4.3.2. Approved Documents ought to be amended annually or promptly whenever developments in materials or building methods make that desirable, all the while ensuring the building will comply with the Building Regulations12.
4.4. If these recommendations are implemented, a wholescale review of existing and prospective construction works will be required to ensure compliance with Building Regulations can be achieved, irrespective of the guidance followed.
6 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.7 7 Building Safety Act 2022, sections 31 and 65 8 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.7 9 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.7 10 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.10 11 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.12 12 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.11
5. Fire Safety Strategy Review
5.1. Those involved in the design and execution of the refurbishment of Grenfell failed to complete the final version of the Fire Safety Strategy. Consequently, the building was in a dangerous condition at completion.13
5.2. The Fire Safety Strategy should describe its structure and the various fire protection systems it contains and set out how they work together to ensure the safety of the occupants in the event of a fire.
5.3. The Inquiry recommended that it is made a statutory requirement:
5.3.1. for a Fire Safety Strategy to be produced by a registered Fire Engineer;
5.3.2. the Fire Safety Strategy should be submitted with building control applications at Gateway 2 for the construction or refurbishment of any Higher-Risk Building;
5.3.3. the Fire Safety Strategy should be re-submitted at the stage of completion Gateway 3.
5.4. The ‘Gateways’ were introduced by the Building Safety Act 202214 as a series of "gateway points" at which duty holders must demonstrate to the building safety regulator that they can properly account for the safety of the completed building. Gateway 2 is effective before either commencing building work on a new or an existing Higher Risk Building and requires Building Control Approval. Gateway 3 is effective once building work is partially or totally completed and requires the Building Safety Regulator to issue a completion or partial completion certificate.
5.5. The recommendations by the Inquiry would introduce further conditions to enable each ‘gateway’ to be achieved which will inevitably elongate the timeline for each stage to be completed.
6. Testing of the Performance of External Wall Systems
6.1. The testing methodology to assess how external wall arrangements react to fire is deficient as neither the large-scale test (BS 8414) or classification under (BR 135) contain a performance criterion to assess performance in a fire.15
6.2. At present, information supporting the products and materials used in external wall systems cannot be relied on in isolation owing to a systemic lack of reliability in such information. In turn, this has resulted in ‘intuitive judgments’ being made on whether external wall systems can support a particular evacuation strategy.
6.3. The Inquiry recommended (among other items) that BS 9414 (a British Standard which determines the fire performance of external cladding systems and applies the results of BS 8414 tests) should not be used as a substitute for an assessment by a suitably qualified Fire Engineer.16
13 Phase 2, Volume 7, part 14, chapter 113, paragraph 113.15 14 s.33 of the Building Safety Act 2022 15 Phase 2, volume 1, part 14, chapter 113, paragraph 113.16
7. Certification of Construction Products and Materials
7.1. Construction product manufacturers were able to present misleading marketing materials owing to regulatory bodies (including UKAS) failing to apply proper standards of monitoring and supervision (three separate manufacturers were able to obtain misleading certificates relating to their products).17
7.2. The Inquiry recommended that:
7.2.1. The Construction Regulator should be responsible for assessing the conformity of construction products with the requirements of legislation, statutory guidance and industry guidance.18
7.2.2. Further clarity is required to avoid those who rely on certificates from being misled. The following specific measures are recommended:19
7.2.2.1. Copies of test results supporting any certificate issued by the Construction Regulator should be included in the certificate;
7.2.2.2. That manufacturers shall be required to provide the Construction Regulator with the full testing history of the product or material to which the certificate relates and inform the regulator of any material circumstances that may affect its performance; and
7.2.2.3. Manufacturers are to be required by law to provide on request copies of all test results that support claims about fire performance made for their products.
7.3. The recommendations will likely trigger a holistic review of all construction products and materials used and proposed to be used in construction projects. It seems likely that insurers and warranty providers will require confirmation that appropriate certification has been achieved for the products and materials used in works before signing off their cover. It also seems likely that the recommendations will lead to a standardisation of certification with parameters set by the Construction Regulator.
16 Phase 2, volume 1, part 14, chapter 113, paragraph 113.18 17 Phase 2, volume 7, part 14, chapter 113, paragraph 113.20 18 Phase 2, volume 7, part 14, chapter 113, paragraph 113.22 19 Phase 2, volume 7, part 14, chapter 113, paragraph 113.23
8. Compartmentation in Fire Safety Strategies20
8.1. The current guidance assumes that effective compartmentation renders a stay put strategy an appropriate response to a fire in a Higher Risk Building. However, it is clear from the Inquiry and the factual circumstances in which the fire at Grenfell unfolded that specific materials and methods of construction cannot be relied on to provide effective compartmentation.
8.2. Those who design buildings need to be aware of the relationship between the rate at which a fire is likely to spread through the external walls and the time required to evacuate the building or the relevant parts of it. A stay put strategy in response to a compartment fire will only be acceptable if there is a negligible risk of fire escaping into and spreading through the external wall.
8.3. The Inquiry recommended that:
8.3.1. The guidance ought to draw attention to the need to make calculations as to the rate at which a fire is likely to spread and the time required for evacuation (including the evacuation of vulnerable residents).
8.3.2. AD B ought not to include in a prescriptive manner what is acceptable in broad terms as each building is different.
8.4. Existing and proposed fire evacuation strategies within Higher Risk Buildings will need to be reviewed with particular regard to the rate of fire spread and need to ensure the safe evacuation of vulnerable residents from the building.
9. Competence of Fire Engineers
9.1. Currently, it is possible for a person to practice as a Fire Engineer without any formal qualifications. The Inquiry referred to evidence which supports that not all those who practice as Fire Engineers can perform the role competently and the complex subject matter is not always understood21.
9.2. Given the importance of Fire Engineers, the Inquiry suggests that the profession of Fire Engineers should be formally recognised, and the title and function should be protected by statute. This should, over time, create a body of registered Fire Engineers who can contribute to the design and delivery of safe buildings22.
9.3. The Inquiry recommended:
9.3.1. The profession of ‘Fire Engineer’ be recognised and protected by law23.
9.3.2. An independent body be established to regulate the profession, define the standards required for membership, maintain a register of members and regulate their conduct24.
9.4. To speed up the creation of the professional body, it is recommended:
9.4.1. The Government takes urgent steps to increase the number of places on high quality master’s level courses in Fire Engineering, which is accredited by the professional regulator25.
9.5. This means that going forward, the profession of a ‘Fire Engineer’ will be formally recognised and regulated through an independent body. The profession will have set standards and qualifications to ensure competence throughout the profession. To aid with this, entry numbers onto high quality master’s level courses, specialising in Fire Engineering will be made available. Over time, this will result in all Fire Engineers holding the necessary qualifications to carry out the role.
9.6. It remains to be seen whether existing Fire Engineers will be required to undertake competence tests to determine their capacity to act and be relied on as a Fire Engineer. The Inquiry’s recommendations will heighten the construction industry’s awareness of Fire Engineers competence and encourage a higher level of scrutiny on any advice which Fire Engineers provide.
20 Phase 2, volume 7, part 14, chapter 113, paragraph 113.13 21 Phase 2, volume 7, part 14, chapter 113, paragraph 113.24
See also Volume 1, Part 2, Chapter 7, paragraph 7.31 which states “He had no fire engineering qualifications and could tell us only that his experience in fire safety came from his nine years working as a building control officer.” And Volume 2, Part 3, Chapter 26, paragraph 26.91 which states “NHBC’s approval was ultimately given by Steve Evans and Diane Marshall, neither of whom had any fire engineering qualifications.”
22 Phase 2, volume 7, part 14, chapter 113, paragraph 113.25 23 Phase 2, volume 7, part 14, chapter 113, paragraph 113.25 24 Phase 2, volume 7, part 14, chapter 113, paragraph 113.25 25 Phase 2, volume 7, part 14, chapter 113, paragraph 113.25
10. Competence of Fire Risk Assessors
10.1. Fire Risk Assessors are not subject to any mandatory competence regime against which their expertise can be assessed. Responsible Persons (as defined under the Building Safety Act 2022) have been relying on Fire Risk Assessors to produce fire risk assessments on their behalf to discharge their obligations under the Fire Safety Order26.
10.2. The Inquiry recommended that the Government establish a system of mandatory accreditation to certify the competence of fire risk assessors by setting standards for qualifications and continuing professional development and such other measures as may be considered necessary and desirable27.
10.3. As with the recommendations pertaining to the competence of Fire Engineers, it remains to be seen whether existing Fire Risk Assessors will be required to undertake competence tests. The Inquiry’s recommendations could increase the quality of existing and future Fire Risk Assessors within the profession. In turn, these recommendations should translate to Responsible Persons (who choose to outsource this function) receiving better quality advice as to the safety measures it can implement in building for which it is responsible.
11. New Gateway 2 Obligations
11.1. Architects for the Grenfell Tower refurbishment failed to exercise proper care in relation to the choice of insulation and rainscreen panels28. The Inquiry are concerned that there may be a widespread failure among the profession to investigate properly or understand the nature of the materials being chosen for that purpose. Both the rainscreen and the insulation used in the refurbishment of Grenfell was combustible.
11.2. The Inquiry has recommended that it should be a statutory requirement that a Gateway 2 application is supported by:29
11.2.1. a statement from a senior manager of the principal designer under the Building Safety Act 2022 that all reasonable steps have been taken to ensure the building as designed will be safe in compliance with Building Regulations.
11.3. The Inquiry’s recommendations introduce further conditions to enable Gateway 2 to be achieved which will inevitably elongate the timeline for that stage to be completed.
26 Phase 2, volume 1, part 2, chapter 12, paragraph 12.1 27 Phase 2, volume 7, part 14, chapter 113, paragraph 113.41 28 Phase 2, volume 1, part 14, chapter 113, paragraph 113.29 29 Phase 2, volume 1, part 14, chapter 113, paragraph 113.31
12. Competence of Principal Contractors
12.1. Principal Contractors for the Grenfell Tower refurbishment demonstrated a lack of knowledge of fire safety standards and Building Regulation requirements30 and failed to co-ordinate the design process effectively to identify responsibilities for particular aspects of the work31.
12.2. The Inquiry has recommended:
12.2.1. A licensing scheme, operated by the construction regulator be introduced for principal contractors who wish to undertake the construction or refurbishment of higher-risk buildings.
12.2.2. That it is made a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover, the building is as safe as the Building Regulations require32.
12.3. The Inquiry’s recommendations focus on establishing a competence threshold for Contractors to be eligible to undertake works (in particular on Higher Risk Buildings) and to pinpoint responsibility on senior staff who are responsible for ‘signing-off’ the work of a Principal Contractor. The Licensing regime may increase the likelihood of contractor monopolies developing with only those organisations who have the resource being able to negotiate these additional requirements. Furthermore, it is not clear what liability any person giving a personal undertaking will have, in the event it is considered ‘reasonable care’ has not been taken to ensure the building is safe.
13. Building Control Functions
13.1. Building Control has been affected by a systemic misunderstanding of their role in the construction industry coupled with Approved Inspectors having a commercial interest33 in acquiring and retaining customers which conflicts with the public interest34. The Inquiry found that Building Control had a “statutory obligation to check for compliance” and a “responsibility to protect the public and it wholly failed to perform that function. It therefore bears considerable responsibility for the dangerous condition of Grenfell Tower immediately on completion of the refurbishment”.35
13.2. The Inquiry has made two connected recommendations regarding building control:
13.2.1. A recommendation that an independent panel be established to consider whether it is appropriate for building control functions to be performed by someone with a commercial interest in the process36; and 13.2.2. A recommendation that the same panel consider whether all building control functions should be performed by a national authority, exercised nationally, rather than individual local authorities37.
13.3. Neither of these recommendations are limited to Higher Risk Buildings. The Inquiry’s recommendations are not conclusive, because they are suggesting the Government convene a panel to consider these questions in detail. But in principle, they gesture towards the abolition or radical reform of the private sector building control profession for all works, Higher Risk Buildings and non-Higher Risk Buildings work, and the replacement of the public sector building control department at a local authority level with a national authority - a ‘beefed up’ Building Safety Regulator for all Higher Risk Buildings and non-Higher Risk Buildings work.
13.4. The Inquiry does not recommend abolition or radical reform of the private sector building control profession, nor a nationally centralised public sector building control function. Nevertheless, in light of their findings regarding the structural tensions in the private sector, and the inadequacies of the public sector, there is a clearly articulated rationale for a detailed review. Building Control is still implementing changes brought about by Building Safety Act 2022 and if these recommendations are implemented, and that results in further reform, there will be further significant change ahead.
30 Phase 2, volume 4, part 6, chapter 64, paragraph 64.9 31 Phase 2, volume 4, part 6, chapter 64, paragraph 64.29 32 Phase 2, volume 7, part 14, chapter 113, paragraph 113.33 33 Phase 2, volume 1, part 2, chapter 11, paragraph 11.36 34 Phase 2, volume 1, part 2, chapter 11, paragraph 11.36 35 Phase 2, volume 4, part 6, chapter 62, paragraph 62.64 36 Phase 2, volume 7, part 14, chapter 113, paragraph 113.37 37 Phase 2, volume 7, part 14, chapter 113, paragraph 113.38
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