Leaseholder Protection, the Defective Premises Act and Non-Cladding Remediation

Leaseholder Protection, the Defective Premises Act and Non-Cladding Remediation

In the week that the Grenfell Inquiry came to an end (the inquiring but anyway, it will be a while before the conclusions are made) we were greeted with a barrage of updates as  Rt Hon Greg Clark picks up the mantle as Secretary of State for Levelling Up, Housing and Communities from Michael Gove.  The announcements included that 48 Developers have pledged to remediate fire safety defects in buildings over 11 metres that they have played a role in developing over the past 30 years.

This has been followed by a raft of new guidance around how government is going to honour their commitment “to protecting innocent leaseholders from the unfair burden of remediation costs to make their home safe”.  Their focus is now the buildings with 2 or more residential dwellings and at least 11 metres in height or has at least five storeys (whichever is reached first).  Whilst a lot of attention is on the cladding, the guidance makes it clear that the scope of this new regulatory framework is now far broader too.

Through the Building Safety Act Courts have been granted new powers to extend liability to associated companies . The aim is to ensure that civil cases for claims against defective buildings can be brought against companies associated with a developer, preventing the use of complex corporate structures to avoid liability. The government is clear that developers must pay to fix buildings they had a role in developing or refurbishing, even where they no longer own the building. The Act ensures that building owners who are – or are associated with – the developer must pay for the remediation of historical safety defects.

The guidance published this week starts to look at the definition of “relevant defect” and what buildings (and leaseholders) are in scope of the protections.  There is plenty of information published on cladding where cladding remediation is regarded as the removal of or replacement of any part of a cladding system that meets both of the following conditions:

  • it forms the outer wall of an external wall system
  • it is unsafe

But the wider relevant defect approach which identifies that non-cladding remediation is work is undertaken to fix a relevant defect, which is not an unsafe cladding system defect.

Examples of non-cladding remediation include:

  • replacing inappropriate fire doors
  • fixing missing compartmentation, which limits how easily fire can spread through a building
  • replacing combustible walkways or balconies
  • reinforcing low-strength concrete beams to improve structural integrity
  • fixing any other defect in scope of the relevant defect definition that is not a defect of the cladding system

Whilst the developer is in the cross-fire there it feels inevitable that the disputes will not have gone away and the battle ground has shifted.  The likelihood is that the developers will be seeking redress through the supply chain and we got more than an inkling of this in the judgment recently handed down in the case Mulalley bs Martley Homes.  Here contractor Mulalley was engaged on a design and build JCT 1998 Standard Form of Building Contract in 2005 to re-clad the exterior of the five tower blocks for Martley Homes.  Full details of the case are available here (and well worth reading), but the headline is that that contractor is now required to pay £8 million in compensation.  Commenting on the case FIS CEO, Iain McIlwee stated:

“This case is the first of many that will start to set precedent on historic claims and now that the Defective Premises Act has been updated and extended, it is likely that this will spread beyond the realms of cladding.  We remain committed to ensuring that the mechanisms to manage disputes advance at the same speed as the Polluter Pays agenda so that the judgments are fair, but that  huge time and resources is not wasted on legal fees and that we can focus our energies as an industry on getting to grips with the unacceptable legacy that the systemic failure created”

Detailed guidance from the FIS on the Building Safety Act via our Quality Hub here.

You can access the full range of guidance published this week here.  We have included links to some of the most relevant sections below:

New guidance to explain the impact of Building Safety Gateways on Interior Systems

New guidance to explain the impact of Building Safety Gateways on Interior Systems

With the Building Safety Act in force and the Regulator starting to build the infrastructure necessary to manage and monitor and to develop guidance, FIS has developed initial guidance to help members consider what the impact of new Gateways will be on the construction process.

Commenting on the guidance FIS Technical Director, Joe Cilia said:

“It is important to remember that the Building Safety Act is designed to change the process and culture of construction.  It is vital that we start to work together to understand the impact and how our processes and working practice will need to evolve.  We have been working with a number of groups and felt it important to share our early thinking and start to explore changes with our members.”

FIS is setting up a working group to look at Building Safety Act compliance that will start to meet in the Autumn – if you are interested in getting involved, please email joecilia@thefis.org

Increase fire compliance through better knowledge of fire doors and their supporting construction

Increase fire compliance through better knowledge of fire doors and their supporting construction

FIS Technical Director Joe Cilia will be taking part in a seminar focussing on fire door compliance and their surrounding supporting constructions.  This seminar is a collaboration between Selo | Riser doors & Concealed frame doorsets, Knauf and FIS, to help the whole industry progress.

Understanding the issues and interface between the supporting structure, and the fire doors is key for a compliant installation, yet things can be missed especially in the construction phase when temporary doors are installed.

The event is being held on 14 July and can be attended in person, or online. For more details and to register visit https://selo.global/seminar-doors-walls-under-review/

 

Building Safety Act comes into force

Building Safety Act comes into force

The Building Safety Act has now taken effect, introducing the most significant changes to building safety regulation in a generation, including:

  • An extension of the limitation period for claims brought under the Defective Premises Act, both retrospectively from six to 30 years for dwellings completed before 28 June 2022, and prospectively from six to 15 years for dwellings completed after this date.
  • The introduction of the Building Safety Regulator and Construction Products Regulator.
  • A new gateway system to ensure building safety requirements are met throughout the planning and construction process, along with the requirement to maintain a ‘golden thread’ of information throughout a building’s lifecycle.
  • An extension of the Building Safety Levy worth an estimated £3 billion.

The Government has published a series of factsheets to help dutyholders and the wider industry understand the new requirements.

Building Safety Act:  Sector Prioritised in Competence Drive

Building Safety Act: Sector Prioritised in Competence Drive

Following the Grenfell Tower fire, FIS has been working at the heart of Working Group Two (WG2), established as one of the Competence Steering Group (CSG) working groups to look at the competence of those installing fire safety systems.  This remit subsequently expanded to cover all installers working in construction and the built environment.

WG2 has recommended that the industry should adopt a framework for all the installer sectors working on in-scope buildings that can be applied to other project types. The framework will consist of:

1. Accredited third party certification of companies
2. Level 2 or 3 qualifications for individuals
3. A card scheme such as, but not limited to, the CSCS
4. CPD refresher training and the maintenance of individual skills
5. All installers have a core knowledge of fire safety in buildings – training to be standardised and made mandatory

In line with these recommendations, WG2 has completed the first phase of its work benchmarking the existing competence arrangements of six pilot installer sectors which have the potential to significantly impact on life safety. The six pilot sectors are:

1. Domestic Plumbing and Heating
2. Dry Lining
3. Fire Detection and Alarms
4. Fire Stopping Specialist
5. Rainscreen Cladding
6. Roofing

The objective of ‘Pilots – phase one,’ was to establish the current competence arrangements, compare them to the WG2’s
recommendations and BSI Flex 8670: Core criteria for building safety in competence frameworks – Code of practice and identify
any gaps.

These Pilots have been completed and WG2 will now move to phase two and the six pilot installer sectors will reconvene with their own Chairs and Terms of Reference, to develop their sector-specific competence frameworks to meet the recommendations set out in Setting the Bar. This work is expected to last between six to nine months with each sector developing a timeline and implementation plan for addressing the shortcomings.

FIS has helped to assemble a working group to focus on Dry Lining, with the initial meeting of the Working Group Chairs scheduled for September.  The organisation is providing support to this group to link to the work around firewalls identification and labelling and ensure that competency frameworks developed and the processes, support required to deliver the required level of competence are practical and to identify any obstacles to systemic success.

FIS CEO Iain McIlwee commented: “The Building Safety Act is here and we need to ensure that we have robust processes to meet the exacting requirements.  Competence is at the heart of it and we looking forward to using this pilot to pull together a lot of hard work that has been put in by members and particularly our Skills Board to ensure that we don’t just know what good looks like, but we know how to get there.  This is a great opportunity to show that the sector is stepping up.”

The latest report Working Group 2 report which provides more context is available here – if you are interested in finding out more about this work and getting involved in the pilot group email iainmcilwee@thefis.org

Find out more about the FIS Competency Passport system here

Find out more about the Building Safety Act here