Perspective Summer 2019

June 27th, 2019

Probyn Miers welcomes you to our Summer 2019 edition of ‘Perspective’ which brings you news, information and points of view on topical issues relevant to construction lawyers, architects, contractors, engineers, insurers and to all our colleagues and friends in the international and UK Construction Industry.

Architects Keeping Good Records
By Michael Ogus

A recent case in the Technology and Construction Court (TCC): Freeborn v Marcal [2019] EWHC 454 (TCC), highlights the importance to all architects of good record keeping, providing a written brief and ensuring that any changes to the brief are clearly explained to the client……  Read More

RIBA New Code of Conduct 2019
By Katerina Hoey

The Royal Institute of British Architects (RIBA) published an updated Code of Professional Conduct on 8 April 2019, (“the RIBA Code”). This came into force on 1 May 2019 alongside new procedures for dealing with disciplinary issues….. Read More

Updates & News

Balcony Scene

On 24 June 2019, MHCLG issued its “Advice Note on Balconies on Residential Buildings”.  In this note MHCLG advised that “the building regulations required that the material and construction of balconies should have been such that balconies should not compromise resident safety by providing a means of external fire spread, even before the introduction of the ban on combustible materials in December 2018”, and that “these provisions apply to buildings regardless of height”.  Before 2018, the Approved Documents provided little clear guidance on fire safety of external balconies, and the change in regulations and guidance is welcome.

New Publication

‘Construction Law in the International Environment ’

Editor & Lead Author: Fernando Marcondes – L.O.Baptista- Sao Paulo 

Editorial: Almedina- Brazil

Preface by Christopher Miers – an extract: 

“This book brings together key elements of international construction law and best practice which represent recurrent themes in the successful delivery of international construction projects. The timing of the publication of the book is important as we see the continued expansion of international construction law as a niche specialist area of legal practice, and we engage with project participants from worldwide cultures…’ Hence, I envisage that this book, expertly conceived of and brought together by the leading, distinguished construction lawyer Fernando Marcondes, with its range of topics and its expert authors, will be much referred to and often cited’. Click here to read the Preface

Introduction by Fernando Marcondes- an extract:

“The proposition of reuniting tendencies and practices of contracting parties in the international environment of the Construction sector was made in 1997 [1], in a brilliant article which considered that due to the increasing infrastructure projects developed internationally, it would be necessary to go beyond laws and custom and usage. The adoption of international contract models and the practice developed during the execution of these projects had already created, at that stage, a collection of references that could not be ignored by the interpreters, whether they were judges, arbitrators, dispute boards members or even parties directly involved with the execution of these contracts and responsible for the decision-making throughout. Click here to read the Introduction

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Architects Keeping Good Records

June 27th, 2019

by Michael Ogus

A recent case in the Technology and Construction Court (TCC): Freeborn v Marcal [2019] EWHC 454 (TCC), highlights the importance to all architects of good record keeping, providing a written brief and ensuring that any changes to the brief are clearly explained to the client.

In this case the court held an architect to be negligent, and in breach of contract, for amending the design of a floating cinema room without the agreement or knowledge of his domestic clients and awarded damages of nearly £500,000. Interestingly, this award was to cover the costs of demolition as the court considered that the final design was so different to the original proposal that demolition and reconstruction, rather than rectification, was a reasonable course of action.

Background

Phillip Freeborn and Christina Goldie, (“the Clients”), appointed Dan Marcal Architects, (“Marcal/Mr Marcal”), to design refurbishment works to their home in Totteridge, North London. The works included converting the pool house into a function room and constructing a “glass box on legs” as a cinema room. The Clients were unhappy with the result and brought a claim for professional negligence. The key dispute, as identified in closing submissions, was “whether or not Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved.

Appointment

Marcal maintained that the scope and nature of its role changed over time as its instructions changed. It argued that it entered into an “ad hoc contract” with the Clients to provide various architectural services at the hourly rate of £35 per hour, eventually invoicing the client for 1,000 hours or £35,000.

The Judge rejected this argument. He considered that a contract made partly orally and partly in writing based on email exchanges and meetings was effective.

Record keeping

Mr Marcal described his daybooks, notebooks and sketch pads as “tumble dryer of information”. The judge however described them as:

“a tumble dryer of misinformation. The note books are confused, confusing and chaotic.”

(…)

“They are not in any chronological order or indeed in any order. It was pure chance which led to any daybook, notebook or sketch pad being used on any particular day or for any particular project or, indeed, being used for personal rather than professional purposes. The Defendant had no clear recollection whether any entry was a proposed agenda, minutes of a meeting or subsequent retrospective musings. It was never clear from the notebooks who attended any particular meeting or who said what.”

The judge observed that Marcal had produced no written contract, no written brief, no minutes of any meetings with the Clients or the Contractors, no planning reports and no interim accounts or valuations for the works. When asked to explain his recollection of events Mr Marcal had to rely on the “tumble dryer of information” in the absence of supporting contemporaneous documentary evidence.

Design development

In October 2014 the parties began discussing the idea of a glass box to house the cinema. This was to be suspended from the ceiling and supported on four legs. Marcal developed the design and and sent 3D renderings of the proposal to the Client. What was eventually constructed was described by counsel for the claimants as a “wonky industrial design” not the “sleek modern look” illustrated in the 3D renderings.

Marcal contended that the transformation of the design was agreed over a series of meetings held between November 2014 and May 2015. The Judge considered each meeting in turn and concluded –

“None of the Defendant’s accounts as to how the design developed from sleek modern to wonky industrial to use the words of Counsel for the Claimants, which I consider is a fair description as to what was anticipated by the Claimants and as to what was provided, is convincing. The Defendant’s general lack of credibility when it comes to making the best of what he scribbled in his daybooks makes his history of the alleged development of the design very difficult to accept.”

(…)

“ … Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved and which was significantly and critically different from the sleek modern look they were expecting. The wonky industrial look was not discussed with the Claimants, was not what they expected to be provided and had not been approved by them.”


The Architect’s Registration Board (ARB) Code of Conduct 2010

Registered architects should be aware of their obligations under the Architect’s Registration Board Code of Conduct 2010, (“the ARB Code”), in respect of appointments and managing the brief. The ARB Code, which was referenced during proceedings, sets out the duties of an architect before undertaking any professional work as follows:

“4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

  • the contracting parties; 
  • the scope of the work: 
  • the fee or method of calculating it; 
  • who will be responsible for what; 

(…)

4.5 Any agreed variations to the written agreement should be recorded in writing.”

Written brief

The Judge considered that it would be bad practice not to have recorded the initial brief or any changes in design development in writing and considered on the evidence that there was neither a written brief nor a written agreement.

 “ … to avoid any misunderstanding at the very least, a written brief is essential and changes to that brief must be recorded in writing whether by drawings, sketches and/or minutes of meetings.”

“This is not only necessary but the absence of these documents was causative of the losses claimed on this claim. The Defendant effectively went on a frolic of his own producing a wonky industrial design rather than the sleek modern design the Claimants were expecting.”

The Judge emphasized the importance of this in relation to small projects which have a novel design.

“ … any reasonably competent architect who did not in exceptional circumstances produce a written brief and did not explain in those exceptional circumstances in writing why such a written brief had not been produced would be in breach of any duty of care owed to the client.”

In summary the Judge stated –

“The central plank of the Defendant’s case on approval was the so-called daybooks. However, these daybooks – the tumble dryer of information – could not be relied upon because they could not be reliably used as a source document. Not even the Defendant could understand what they recorded or when these records were produced. The Defendant’s failure to produce a written brief was a serious breach of duty which went to the root of the difficulties which he and the Claimants encountered. What was also an important failure was his failure to record the design changes from the sleek modern design for the cinema box illustrated in the 3-D picture he commissioned to the wonky industrial design eventually produced to the Claimants for their approval … “

In essence, the failure to provide a written brief will amount to a “serious breach of duty”.

Demolition

In cases of this type, the award of damages typically relates to the cost of rectifying the defective works. In this case, however, court accepted that rectification was not appropriate and awarded damages based on the cost of demolition.

“The Claimants have decided to demolish the cinema room. I consider such a decision to be a reasonable decision. Whilst I accept that the ordinary measure of damage when an architect has acted negligently is the cost of rectification, I do not consider that this particular ugly duckling can be turned into a swan. What was provided is so different to from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward.”

This can be contrasted with the decision in Ruxley & Forsyth [1995] UKHL8 where demolition and reconstruction were held not to be reasonable steps, notwithstanding that the project (in the case a swimming pool) did not comply with the brief.

Aesthetics

Marcal’s breach of duty was not attributable to a consideration of the aesthetics of the cinema box. The Judge was clear that opinions on the appearance of the cinema box are subjective. The issue at hand, he said, was the failure of Marcal to agree the brief with the Client and keep them informed of any possible changes during design development.

“The appearance of the cinema and who likes what are all issues which are somewhat subjective. There may be people who prefer the industrial wonky design to the sleek modern design. However, that is why it was essential not only to agree the brief but also to ensure that the Claimants had a clear understanding as to what would be provided.”

Summary

This case highlights the importance to all architects of: keeping good records that can be relied upon; of defining and recording the brief; and, most importantly, where changes are made to the brief ensuring that the client is made fully aware of these changes at all stages. In addition, registered architects should be aware of their obligations under the ARB Code regarding appointments and variations to the brief.

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RIBA New Code of Conduct 2019

June 27th, 2019

by Katerina Hoey

Updated RIBA Code of Professional Conduct:

The Royal Institute of British Architects (RIBA) published an updated Code of Professional Conduct on 8 April 2019, (“the RIBA Code”). This came into force on 1 May 2019 alongside new procedures for dealing with disciplinary issues.

The most significant aspect of the new disciplinary procedures is a change in the standard of proof from ‘beyond reasonable doubt’ to ‘a balance of probabilities’ (RIBA Disciplinary Procedures, para 9.16), aligning it with requirements set by many other professional and regulatory bodies, including the Architects Code (2017) of the Architects Registration Board, (“the ARB Code”).

While the RIBA Code still retains its three principles of ‘Integrity’, ‘Competence’ and ‘Relationships’, it has been expanded into a comprehensive 18-page document, incorporating an introduction section and non-binding guidance notes within the various provisions as well as a comprehensive list of defined terms.

‘Principle 1: Integrity’ has been significantly expanded and includes re-written and extended sections on the following:

  • ‘Impartiality and undue influence’;
  • ‘Statements’;
  • ‘Conflicts of interest’;
  • ‘Confidentiality and privacy’ (incorporating legislative requirements under GDPR); and
  • ‘Bribery and corruption’ (incorporating legislative requirements under the Bribery Act 2010).

New requirements have been added, relating to:

  • ‘Handling client money’ (aligning the RIBA Code with Standard 7 of the ARB Code); and
  • ‘Criminal conviction / disqualification as a director / sanction’ (aligning the RIBA Code with Standard 9 of the ARB Code as well as incorporating para 1.3 from RIBA Guidance Note 1).

‘Principle 2: Competence’ has been significantly expanded and almost entirely re-written. Extended sections include:

  • ‘Skill, knowledge, care, ability’ (aligning the RIBA Code with Standard 2 of the ARB Code regarding arrangements for work to continue in the event of a Member’s incapacity or worse);
  • ‘Terms of appointment’ (significant detail added);
  • ‘Time, cost, quality’ (including a new requirement under 3.4 regarding the need for specialist cost control advice); and
  • ‘Record keeping’ (incorporating legislative requirements under GDPR).

New requirements have been added, relating to:

  • ‘Health and safety’ (incorporating statutory requirements under the CDM Regulations);
  • ‘Inspection services’;
  • ‘Building Performance’ (aligning the RIBA Code with the updated Plan of Work, new section 7);
  • ‘Heritage and Conservation’;
  • ‘Town and country planning’;
  • ‘Law and regulations’;
  • ‘Certification’ (possibly in response to recent case law);
  • ‘The environment’ (aligning the RIBA Code with, and significantly expanding upon, Standard 5 of the ARB Code); and
  • ‘Community and society’.

Several obligations have been added to principle 2, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code. These include:

  • 6: “Members must make appropriate arrangements for their professional work to continue in the event of incapacity, death, absence from, or inability to, work”. While this is already contained within the ARB Code (paragraph 2.2) and appears feasible for a medium to large practice, a small practice or sole trader is likely to breach this requirement on a regular basis. Guidance note GN 16 suggests that “appropriate arrangements” might include having an agreement with another local practice for them to offer to continue the work for the client. It is difficult to see how this might work in practice, however, and such an arrangement is unlikely to be of great benefit to a Client who will still need to put their project temporarily on hold while the new Architect plays ‘catch up’.
  • 14: “Members should reflect on and evaluate their own work”. It is not at all clear how any potential breach should be assessed or how fulfilment of this obligation could be demonstrated.
  • 2: “Members should endeavour to deliver projects that: (a) are safe; (b) are cost effective to use, maintain and service; and (c) minimise negative impacts on the environment during their anticipated life-cycle”. In the current climate, the definition of ‘safe’ is being continually re-assessed. Any reference to this obligation should be viewed, therefore, within the context of an Architect’s obligations under their Appointment, and the industry guidance available and regulatory framework in place at the time the work in question was carried out. Cost effectiveness in use, and impact on the environment during the project’s life cycle, may also present difficulties in interpreting what is reasonable in the circumstances. It will be preferable to clarify these so far as possible in the Brief and the instructions.
  • 4: “Members must take reasonable steps to protect the health and safety of those carrying out, or likely to be directly affected by, construction work for which they are providing professional services. This includes clients and members of the public”. While this would appear to align the RIBA Code with an Architect’s obligations under the CDM Regulations, the guidance notes (GN 6.2, 6.3 and 6.4) state that “‘reasonable steps’ may require doing more than is strictly required by law and regulations” (my emphasis). I anticipate challenges in assessing what may be considered ‘reasonable’ without clear reference to statutory requirements. I would expect an Architect’s obligation under this section of the Code to be assessed within the context of the obligations of other relevant parties, including the Contractor’s responsibility for the site during the construction period.
  • 9: “Members should practice evidence-informed design and should keep records of the evidence used in reaching design decisions”. The guidance note GN 13.9 advises that members should “keep written records of the evidence and data examined and used by them in reaching decisions in the design process… and any reasons for not acting on particular pieces of evidence considered”. This is an onerous obligation and I anticipate challenges ahead in assessing allegations of non-compliance.
  • 2: “In performing professional services, Members should promote stronger communities and improve equality, diversity and inclusion in the built environment”; this is an onerous blanket requirement that does not appear to take into account the requirements of the Client’s brief or any other contextual issues including assessment of existing equality diversity and inclusion. Reference to “in the built environment” is broad and I anticipate challenges ahead in assessing allegations of non-compliance and dealing with a potential proliferation of third-party claims.

‘Principle 3: Relationships’ has also been expanded and re-written in places. Extended sections include the following:

  • ‘Peers’ (new paragraph 3.4 aligns the RIBA Code with Standard 9 of the ARB Code);
  • ‘Equality, diversity and inclusion’ (incorporating legislative requirements under the Equality Act 2010);
  • ‘Employment and responsibilities as an employer’ (bringing in and expanding upon RIBA’s Employment Policy);
  • ‘Competitions’ (incorporating reference to applicable procurement law); and
  • ‘Complaints and dispute resolution’ (aligning the RIBA Code with Standard 10 of the ARB Code).

New sections add requirements relating to:

  • ‘Copyright’;
  • ‘Previous appointments’;
  • ‘Modern slavery’ (incorporating legislative requirements under the Modern Slavery Act 2015);
  • ‘Advertising / business names / use of RIBA crest and logo’ (incorporating previous RIBA Guidance Note 2 ‘Advertising’);
  • ‘Insurance’ (incorporating previous RIBA Guidance Note 4 ‘Insurance’ and bringing the Code in line with ARB Architects Code Standard 8);
  • ‘Non-disclosure agreements’; and
  • ‘Whistleblowing’.

Two obligations have been added to principle 3, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code.

  • 4: “Members who become aware of a probable breach of the Code by another member shall report it to the RIBA Professional Standards team, with such supporting information and evidence as is available”. Further explanation of this obligation is provided in the guidance note (GN 3.4) which states that “failure to report a probable breach is only justified when prevented by law or the courts…”. While this requirement is included within the ARB Code (para 9.3), it is less stringent and requires reporting “in appropriate circumstances” and where conduct “falls significantly short”; the language used in the RIBA Code indicates that this applies to a probable breach of any aspect of the RIBA Code, which is broader in scope than that of the ARB.
  • 3: “Members shall use reasonable skill and care to use supply chains which are free from Modern Slavery”. Further explanation of this obligation is provided in the guidance note (GN 5.3) which states that “’Supply chains’ includes both materials and people. Members should be aware of the labour used in the extraction, manufacture and production of materials they use or specify, as well as the direct labour involved in their projects”. This wide interpretation of the supply chain imposes an onerous obligation on Architects; while appropriate enquiries can be made of Manufacturers during the specification process and in theory it is possible to incorporate a Modern Slavery statement by a Contractor into the tendering process, the expectation expressed in the guidance note that Members “should be aware of the… labour involved in their projects” is somewhat unrealistic.

The recent cases of Riva v Foster [2017] EWHC 2574 (TCC), Burgess v Lejonvarn [2018] EWHC 3166 (TCC) and Freeborn v Marcal [2019] EWHC 454 (TCC) highlight failures regarding obligations which are the subject of the amendments made the RIBA Code; these include:

  • ‘Skill, knowledge, care, ability’ and paragraph 1.9 “Members shall advise their clients in writing as soon as is reasonably practicable if the Member’s assessment of the likelihood of achieving the client’s requirements and aspirations changes during the project”: Freeborn v Marcal.
  • ‘Terms of Appointment’: Riva v Foster and Burgess v Lejonvarn;
  • ‘Time, cost, quality’ and paragraph 3.3 (b) “Members must carry out their professional work without undue delay and, so far as it is within their powers… in accordance with any cost limits agreed with their clients”: Riva v Foster;
  • ‘Keeping the client informed’: Freeborn v Marcal;
  • ‘Record keeping’: Freeborn v Marcal; and

To conclude, the updated Code has gone a long way in aligning itself with standards of professional conduct required by other regulatory bodies and has responded to updated legislation, regulation and recent case law. However, some requirements have been introduced that may cause difficulties in defining and/or assessing in terms of non-compliance. These may have been best left within the guidance notes.

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Perspective Spring 2019

April 8th, 2019

Probyn Miers welcomes you to our Spring 2019 edition of ‘Perspective’ which brings you news, information and points of view on topical issues relevant to construction lawyers, architects, contractors, engineers, insurers and to all our colleagues and friends in the international and UK Construction Industry.

Fire and Tall Buildings – Progress on safety?
By Frank Newbery
In this article I look at how the official guidance on Fire Safety has been modified in the wake of the Grenfell Tower fire, what the current requirements are, and what further modifications might be desired or expected in due course. Of central importance is the Building Regulations…..  Read More

Expert evidence in construction cases– a view from the tub
By Bart Kavanagh
At a recent event on negotiation skills at the Academy of Experts the speaker, a negotiator in international and domestic hostage situations, emphasised that the most important skill he needed was listening. And his first rule of listening? – don’t ask questions. His view, based on experience…..  Read More

Updates & News

A Landmark Case – Literally

Blue Manchester v North West Ground Rents [2019] EWHC 142 (TCC)

In January Bart Kavanagh gave evidence at the TCC in Manchester’s Civic Justice Centre in this case involving the iconic Manchester Landmark, the Beetham Tower. The matter resulted from the discovery that a number of glass panels in the external facades had begun to debond from their carrier frames. HHJ Stephen Davies decided that a remedial solution designed for the short term did not constitute repair for an indefinite period and ordered specific performance of a permanent remedy. He also acknowledged that the effect of the temporary remedial works on the aesthetics of the building were relevant to the issue of repair. The judgment can be found on Bailii at the following link: https://www.bailii.org/ew/cases/EWHC/TCC/2019/142.html

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Fire and Tall Buildings – Progress on safety?

April 8th, 2019

by Frank Newbery

In this article I look at how the official guidance on Fire Safety in tall buildings has been modified in the wake of the Grenfell Tower fire, what the current requirements are, and what further modifications might be desired or expected in due course.

Of central importance is the Building Regulations Part B guidance document Approved Document B, Fire Safety, Volume 2 – Buildings other than Dwellinghouses, 2006 edition incorporating 2007, 2010 and 2013 amendments (“ADB”).  This was the last edition before the Grenfell fire.  Especially problematic is its  “Section 12: Construction of external walls”, which provides guidance on how to comply with the core Building Regulation requirement B4(1), i.e. that “The external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building”.

Background 

Following the Grenfell Tower fire in June 2017, the DCLG [1] commissioned a series of tests from the Building Research Establishment (“BRE”) to assess the fire performance of various combinations of cladding materials.  These were based on the British Standard BS 8414 tests, performed on rigs of substantial size built to simulate actual building construction so far as practicable and within standardised test parameters.

The BRE also offered a relatively simple screening test for combustibility [2] resulting in “Category 1”, “2” or “3” classifications for small samples of cladding materials such as Aluminium Composite Material (“ACM”) panels.  BRE reports on these tests include DCLG advice on whether the materials met ADB requirements for limited combustibility.

These processes together with forensic examination of buildings and their project records have made it possible to assess compliance with official guidance, and the presence or degree of any real fire danger to existing buildings and their occupants.  Retrospective cases of this sort often give rise to disputes concerning whether actual compliance had originally been achieved, and/or whether reasonable skill and care (according to the norms of that time) had been exercised by responsible designers, and what type or degree of remediation would then be required, if any.

In parallel with the technical analyses, Dame Judith Hackitt was commissioned by the UK Government to examine the current regulatory framework relating to fire safety, and report on shortcomings and potential improvements.  Dame Judith produced an interim report in December 2017, then a full report in May 2018 [3], (“the Hackitt Report”).

The Hackitt Report found that current regulatory systems for fire safety were “not fit for purpose”  and, more specifically, that (a) project roles and responsibilities were unclear, (b) the current ADB could be “ambiguous and inconsistent”, (c) “processes that drive compliance [were] weak and complex”, (d) “competence across the system [was] patchy”, (e) “product testing, labelling and marketing [was] opaque and insufficient”, and (f) safety concerns of residents often went unheard.

The recommendations of the Hackitt Report were summarised in a flow chart at Appendix B: “Mapping the new building safety regulatory framework – construction and occupation of a higher-risk residential building (HRRB)”.  The proposed framework recommended (inter alia) (a) the formation of Joint Competent Authorities (“JCAs”) comprising Local Authority Building Standards, fire and rescue authorities and the Health and Safety Executive to oversee better management of safety risks, (b) clear “dutyholder”  roles and responsibilities, (c) Robust “gateway points”  to ensure preservation of objectives through a project’s phases, and (d) “A single, more streamlined, regulatory route to oversee building standards”.

In respect of a project’s fire safety, the above measures might be expected to increase clarity, awareness, continuity, integration and ultimate effectiveness.

In September 2018 the MHCLG (former DCLG) issued a circular letter ”Assessments Of External Wall Cladding Systems”  to Heads of Local Authority Building Control and Approved Inspectors.  This required building control authorities to be more strict in ascertaining compliance with the current ADB requirements for “limited combustibility”, or alternatively to ascertain success under full-scale and fully relevant BS 8414 / BR 135 testing.  This advice effectively ended the discretion previously exercised by Building Control Authorities’ in accepting “desktop study” alternative routes to compliance.

Current Guidance

Official amendments to ADB were published in November 2018 with notice that they would take legal effect on 21 December 2018.  Key features of this guidance are as follows:-

  1. It applies to England (and to Wales in some circumstances). It does not apply where a building notice or full-plans building control application was made before 21 December 2018, provided that work was started before 21 February 2019.
  2. The core requirement B4(1) of the 2010 Building Regulations (as quoted above) remains unaltered [4].
  3. Regulation 7 for Materials and Workmanship has been extended by additional paragraphs 7(2) to 7(4).
    1. Regulation 7(1) reproduces the original generalised requirement.
    2. Regulation 7(2) establishes that external wall materials of a “relevant building” must conform to European classifications [5] “A1” or “A2-s1, d0”. This is a higher and more strict requirement than “limited combustibility”.
    3. Regulation 7(3) lists several exemptions from paragraph 2, some of which are significant and potentially problematic.
    4. Regulation 7(4) defines the scope of application, i.e. “relevant buildings” with a storey higher than 18 metres from ground level.  This echoes the 18m threshold already set by ADB for use of “limited combustibility” materials.
  4. The whole of ADB Section 12: Construction of external walls is replaced.  Some notable changes and continuities are as follows:-
    1. There is a much shortened and simplified “Introduction”.
    2. The original paragraph 12.5 requirement that “The external envelope of a building should not provide a medium for fire spread if it is likely to be a risk to health or safety” is not reproduced (but see item #v below).
    3. The new paragraph 12.4 retains the BS 8414 / BR 135 test compliance option [6] as an alternative to complying with subsequent paragraphs 12.5 to 12.8.
    4. The new paragraph 12.5 headed “External surfaces” together with the new Diagram 40 reproduces in detail the former paragraph 12.6 / Diagram 40, but with the additional provision that Regulation 7(2) is to prevail where applicable.
    5. The new paragraph 12.6 headed “Insulation materials/ products” reproduces the wording of the former paragraph 12.7, again including the term “filler material”  without any closer definition of what that might include.  It adds however that Regulation 7(2) is to prevail where applicable, plus a “Note 1”  requiring “consideration”  of the impact that materials might have on the risk of fire spread.
    6. The new paragraphs 12.7 and 12.8 headed “Cavities and cavity barriers” are shorter and no more onerous than their predecessors, except that the primacy of Regulation 7(2) is repeated.
  5. The new guidance paragraphs for Regulation 7 largely restate or emphasise the core regulation’s text (see item #c above). Additional advice includes:-
    1. (12.13) Reassessment under Regulation 7 must be undertaken if a change of use brings a building within its scope.
    2. (12.14 a) Membranes used in external walls are to have a minimum European classification of Class B-s3, d0.

Further official amendments to ADB were published in December 2018 with notice that they would take legal effect on 21 January 2019 for use in England.

In relation to fire safety of tall buildings, the main feature of these further amendments was replacement of the first two paragraphs of ADB “Appendix A: Performance of materials, products and structures”  by five new paragraphs.

The new paragraphs are more strict and emphatic concerning reliance upon performance classifications and standards, and how they may or may not be used to underpin assessments of product suitability.

This amendment addresses the previous susceptibility of design processes to ambiguity and confusion arising from the complex, tangled and sometimes unhelpful interrelation of ADB guidance, standards and manufacturers’ claims.

The later paragraphs of ADB Appendix A remain however unaltered.  These include the difficult and intricate paragraphs which cite the BS 476-6 and -7 tests, and how they give rise to the “National” fire performance designation, “Class 0”.  Also there has been no attempt to amend the potentially confusing alternative applicability of “National” and “European” criteria in Tables A6 and A7.

The Future

It is unlikely that the development of revised regulations for tall buildings will halt at this point.  The MHCLG continues to review and consult upon the matter, and the continuing official inquiry into the Grenfell Tower fire itself is likely to sustain interest and prompt further insights into what could or should be done to prevent further occurrences.  Findings in relation to ACM panels have also prompted critical re-examination of other cladding products such as zinc composite material (ZCM) panels and insulated render systems.

The Royal Institute of British Architects has taken a close and critical interest in the unfolding situation, and on 1 March 2019 issued a response to the MHCLG’s call for evidence in its ADB document review [7].  The RIBA recommends “a comprehensive, transparent and fundamental reappraisal, rather than amendment or clarification”.  Its “baseline prescriptive”  requirements include:-

  1. Sprinklers and centrally addressable fire alarms in all new and converted residential buildings and, where materially altered, existing residential buildings higher than 18m.
  2. At least two stairways as alternative means of escape in all new residential buildings where the top floor is more than 11m above ground level, or over three storeys.

Other recommendations include:-

  1. Inclusion of all residential buildings in future revisions of ADB.
  2. Clearer ADB guidance which avoids alternative routes / interpretations. The RIBA finds a “lack of logical flow”  in the current document.
  3. Greater focus on non-constructional factors such as means of warning and escape.
  4. Better coordination between ADB and British Standards, particularly with BS 9991 Fire safety in the design, management and use of residential buildings – Code of practice.
  5. Reassessment of ADB Diagram 40 “Provisions for external surfaces and walls” and revision to exclude the “national class”
  6. Greater clarity regarding the inclusion or exemption of products / materials under Regulation 7’s new paragraphs (2) and (3).

The Royal Institute of Chartered Surveyors and the Chartered Institute of Building have both since joined the RIBA in signing a joint demand for the government to require the installation of sprinklers in all new and converted residential buildings, hotels, hospitals, student accommodation, schools and care home buildings more than 11 metres high, including existing buildings when substantially refurbished [8].

If all these recommendations are taken into account, the outcome should be an increase in fire safety.  However, it is likely that the current guidance for fire safety in tall buildings will require further and more fundamental revision if the clarity, consistency and effectiveness of the regulatory framework envisioned by the Hackitt Report is to be achieved.

[1] Department for Communities and Local Government, now re-named as the Ministry of Housing, Communities and Local Government (“MHCLG”).

[2] An abbreviated version of BS EN ISO 1716:2010, Reaction to fire tests for products — Determination of the gross heat of combustion (calorific value).

[3] Downloadable from:- www.gov.uk/government/publications/independent-review-of-building-regulations-and-fire-safety-final-report

[4] except that a comma after “another” is omitted.  This probably does not alter its meaning for practical purposes.

[5] BS EN 13501-1:2007+A1:2009, Fire classification of construction products and building elements.

[6] Now citing the latest editions of those documents.

[7] www.architecture.com/-/media/files/press-release/riba-response-technical-review-adb-010319.pdf

[8] www.rics.org/uk/news-insight/latest-news/fire-safety/sprinklers/

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