By Shoosmiths partner Richard Symonds, but with contributions from professional support lawyer Amber Wright and partner Hayley Saunders.
Three recent events occurred over the last few weeks which have provided a renewed spotlight on the remediation of tall residential buildings which suffer from fire safety issues. These were:
- The Grenfell Tower Inquiry Phase 2 Report was published on 4 September 2024. In addition to its analysis and criticism of events that lead to this tragedy, it also set out a series of recommendations for consideration by the government aimed at improving building safety in the future and avoiding future incidents of this nature.
- The new Labour government had previously promised to speed up the process of remediating unsafe buildings and Angela Rayner re-confirmed Labour’s commitment to this at the Labour conference last week promising a new remediation action plan this autumn aimed at addressing the slow progress so far.
- Finally, on 26 August 2024 a serious fire broke out in a residential tall building in Freshwater Road, Dagenham injuring a number of residents. The building was known to have material fire safety issues (an enforcement notice had been served by the London Fire Brigade) and was, at the time, undergoing remedial works.
Whilst investigations in relation to the Freshwater Road incident are ongoing, these incidents have led many to question why, over seven years after the Grenfell tragedy, so many buildings continue to contain unremedied fire safety defects. The numbers submitted by the Fire Brigade Union to the Labour Conference last week suggest that there are around 4,600 residential buildings that are over 11 metres that contain unsafe cladding and remedial work is yet to start in relation to over half of them. Not surprisingly, with the shocking conclusions from the Grenfell Report fresh in people’s minds, there is a political and national desire to speed up the progress of remedying defects.
Whilst it is certainly the case that there remain a number of owners and developers who are not addressing these issues in a timely manner, there are also a large number who are committed to undertaking remedial works but are finding that there are a number of hurdles to overcome before these types of large scale remediation projects can commence.
Timescales for remediation have, in many cases, been affected by (a) the complexity of determining and designing the best and most economic way to remedy a defective building – particularly in circumstances where regulatory requirements are being updated and amended, (b) the need, in many cases, to secure funding to complete remedial works and/or to establish who is liable to contribute towards these costs.
Applications to the Building Safety Fund are time consuming in themselves and the remediation of certain types of defects (particularly internal defects) are not eligible for funding. Owners are often understandably seeking clarity on the liability of developers, contractors or other parties to meet these costs before commencing work, and (c) the amount of investigations and remedial work required has placed a strain on capacity meaning the availability of fire safety consultants and contractors is at a premium. Whilst, in many cases, there is a desire to remedy safety defects promptly, the impact of these practical issues on timing should be recognised.
Nevertheless, even before any further anticipated government intervention, there are a number of steps that occupiers can take in order to try and ensure that remedial works are being progressed promptly and the safety of the building is being maintained.
First, obligations to manage and mitigate the risks associated with fire in tall residential buildings should be at the forefront of all landlords/building owners’ minds. The obligations under the revised Regulatory Reform (Fire Safety) Order and Part 4 of the Building Safety Act compel landowners to consider the impact of construction defects on the safety of the building and to decide whether additional actions are necessary to ensure the safety of residents (for example, modification of fire alarm settings or evacuation strategies or even the need for waking watches).
Residents are entitled (as a result of s156 of the Building Safety Act) to, and must be provided with, information about fire safety matters (including the Fire Risk Assessment) and can and should use this information to hold building owners to account.
Further, if residents believe that action is not being taken to fix defects there are various possible legal options open to them. For example, they could apply to the First Tier Tribunal Property Chamber to seek a Remediation Order compelling the person with responsibility for the structure and common parts to carry out the necessary remedial woks. This was a remedy created by s123 of the Building Safety Act and two years on from its enactment, decisions of the Tribunal are starting to come though (7 so far with many more expected) that help to clarify the approach of the Tribunal to these applications.
These applications can compel the relevant parties to progress works, however, it is typically taking at least 9 months from the commencement of the claim for an application for a remediation order to be determined and potentially costly and time-consuming works to understand the extent of the defects will almost inevitably need to be undertaken before an application is made.
As such, it will be interesting to see what the government proposes to ensure the necessary safety works for these buildings are progressed. It is hoped that the likely additional sanctions and criticism will focus on those landowners who are simply not engaging with their legal obligations rather than those who are actively seeking to address matters but are working through complicated and difficult legal and practical issues of such as liability, fundinand the scope of works.
In the meantime, whilst we wait for these issues to be worked through, it is imperative that building owners properly assess the fire safety of their properties and ensure appropriate additional measures are put in place to protect residents from the risk of fire.