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Update on the proposed ban on flammable cladding

Following Dame Hackitt's Review of the Building Regulations and Fire Safety the government announced that it would consult on banning flammable cladding.

The consultation closed on 14 August 2018 and the housing secretary announced at the Conservative Party Conference that the ban would be implemented.

So what do we know about the ban?  

First we will look briefly at what the Consultation recommended as it will assist in understanding what the government have not yet addressed.  The consultation proposals were to:

  • Amend the Building Regulations 2010, meaning failure to comply will not just breach guidance (as in the case of an Approved Document) but will be a criminal offence attracting potentially unlimited fines.
  • Remove the option of assessments in lieu of testing, i.e banning desktop studies, subject to the results of the above consultation.
    Apply to buildings 18m or over to align it with other Building Regulations guidance.  This is again a more onerous threshold for business than the 10 storey standard proposed by Dame Hackitt, the ban will apply through the entire height of the wall.
  • Apply to residential blocks but not to hotels or offices.
  • Ban materials that are not categorised as Class A1 (no contribution to fire at any stage, i.e. metal, stone, glass) or A2 (no significant contribution to fire at any stage, i.e. plasterboard) under the BS EN 13501 standards for combustibility.
  • Cover the complete wall assembly including inner leaf, insulation, façade and cladding.
  • Apply to the products used in construction of balconies and window spandrels.
  • Exempt components where there are no practical A1 or A2 components available or where the risk of fire is so minimal that banning the use of combustible materials would be disproportionate.  Examples given are internal wallpaper and paint, window frames, gaskets, seals, vapour membranes, surface finishes and laminated glass.
  • Be introduced without a transitional period, applying in full to projects ongoing at the time of its introduction.  This is likely to have a significant disruptive effect on supply chains given the long lead-in times for developments and for cladding orders.

The ban announced at the Conservative Party Conference is short on detail, comprising just a single sentence of a longer speech.  It was confirmed that the Building Regulations will be amended to ban the use of combustible materials.  This will apply only to new, high rise (over 18m) residential buildings, hospitals, care homes and student accommodation.  

The timescale for the ban being introduced is unclear but it is important to note what was not dealt with.  In particular it does not identify whether all of the consultation proposals will be adopted.  

As a result a particular concern is that it is unclear if the ban will apply only to exterior cladding or to all materials used in walls (the words used in the speech suggest a ban on all such products being used anywhere in the construction of such buildings).  For those currently contemplating developments consideration will have to be given to whether there are practical A1 or A2 solutions available for fittings and services, for example water pipes, electrical cabling etc. are typically made of plastic components, this may have a significant effect on building design and, therefore, on cost.

Given that the consultation itself provided very little clarity for duty holders and we know that a number of robust responses addressing the practicality of some proposals were put forward, the continuing lack of clarity over both scope and timescale of the ban means that developers would be well advised to future-proof their supply chain, contracts (in particular ensuring there are provisions over who is responsible for replacement of materials that become unlawful), and to identify materials likely to be compliant.  This should prevent unforeseen and irrecoverable costs from affecting developments.  

In further news, the NHBC are reported to have been honouring some claims for replacement of flammable cladding.  It is always worth considering whether existing insurance, warranties or guarantees can potentially meet the costs of cladding replacement both for developers and owners of affected buildings.
TLT's team are happy to discuss the above with interested parties and to assist them in formulating a response to the consultation.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

 

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