It could easily have been another Grenfell Tower. On Friday, 15 November 2019, over 100 people were forced to flee The Cube in Bolton, Greater Manchester, after a fire broke out and spread with devastating speed through the upper floors.

The Cube is a block of student flats. Greater Manchester Mayor, Andy Burnham, told the BBC that the cladding around the building was not the same as that which encased Grenfell Tower, where 72 people died following a blaze in 2017. However, he confirmed that the cladding on the building “causes concern and raises issues that will have to be addressed.”

An investigation has been launched as to why the fire ripped through the structure so fast.

The link between building cladding and fire

The catastrophic fire which destroyed Grenfell Tower in London highlighted the fire danger of certain types of cladding used on multi-storey housing buildings.

In 2016, £8.6 million was spent on installing exterior cladding to Grenfell Tower to improve its aesthetics and energy efficiency.

Contractors on the Grenfell project used aluminium composite panels with a polyethylene core (PE), manufactured under the brand name Reynobond, according to the planning application for the refurbishment.

Similar panels with a polyethylene core have featured in many high-rise fires around the world, including a hotel in Dubai and the Lacrosse Building in Melbourne, Australia.

A salesman for US-based Reynobond told The Times shortly after the fire that the version of panels used in Grenfell Tower are banned in American buildings taller than 40ft (12.2m) for fire safety reasons. “It’s because of the fire and smoke spread,” he said. “The FR [variant] is fire-resistant. The PE is just plastic.”

The PE version is used for small commercial buildings and petrol stations, he said, rather than for tower blocks or critical buildings such as hospitals.

The material used consists of insulation sandwiched between two sheets of aluminium. According to the New York Times, there had been concerns for many years that aluminium surface sheets can melt in a fire, allowing flames to burn through flammable insulation. If other protections fail and fire penetrates the cladding, “It is like you have got a high-rise building and you are encasing it in kerosene,” said Edwin Galea, director of the Fire Safety Engineering Group at the University of Greenwich. “It is insanity, pure and simple.”

In May 2018, following an extensive investigation, Dame Judith Hackitt, former Chair of the Health and Safety Executive, released her final independent report investigating building regulations following the Grenfell Tower fire.

According to Dame Hackitt, the final report confirmed that the existing regulatory system covering high-rise and complex buildings was not fit for purpose.

According to the report, the key issues which underpinned the system failure which led to the fire included:
• The fact that regulations and guidance are often ignored or misread or misinterpreted.
• Those undertaking building work sometimes compromise safety for speed and cost savings.
• It is not clear within the building industry who has ultimate compliance responsibility.
• There is often ineffective regulatory enforcement.

The report recommended a complete overhaul of the current system for residential tower blocks. The government was encouraged to set up a ‘joint competent authority’ (JCA), comprising local authority building standards, fire rescue, and the Health and Safety Executive. A system of mandatory occurrence reporting to the JCA should then be established. Non-reporting should be regarded as non-compliance and sanctions should be applied.

In addition, it was recommended there be a clear model of risk ownership put in place “with clear responsibilities for the Client, Designer, Contractor and Owner to demonstrate the delivery and maintenance of safe buildings, overseen and held to account by a new Joint Competent Authority (JCA)”.

Simplification of the regulatory framework based on outcomes rather than “prescriptive rules and complex guidance” was recommended. Incentives should be provided for those who strive to reach compliance (the majority) and heavy penalties put in place for the very few who “game the system”. By moving to an outcomes-based regulatory system, regulations and guidance can keep up as construction practices and technology advance and evolve.

When it comes to overseeing regulatory compliance, the report stated a risk-based approach is best, meaning complex systems designed for multiple occupancy should be subject to more oversight. The oversight employed should be proportionate to the number of people whose lives could be potentially put at risk if compliance was not adhered to.

The final key recommendation is that an audit trail be put in place through the life cycle of the building from “planning stage to occupation and maintenance”, to provide assurance the building was constructed safely and continues to be safe. Also, the classification and testing of the products need to undergo a radical overhaul to be clearer and more proactive. If concerns are discovered, the findings need to be made public, and if lives are deemed to be at risk, action needs to be taken.

These recommendations only apply to buildings of ten stories or more. Where a planning application is made for a high-risk building, the Local Planning Authority should be required by law to undertake a consultation with the JCA. The same process should apply where planning is sought for another building in the near vicinity (where such building might impact fire service access).

In November 2019, the government announced it had invited a selection of local authorities to become ‘early adopters’ of recommendations proposed in the Hackitt Review of building safety.

Lack of sprinklers

There was no central sprinkler system fitted in Grenfell Tower, and this is in full compliance with current regulations.

Regulations in England mean that only buildings constructed since 2007 and which are taller than 30 metres are required to have sprinklers fitted. This requirement wasn’t applied retroactively so Grenfell Tower, which was built in 1974, was not required to have any sprinklers to be legally compliant.
Building owners only need to fit sprinklers to buildings pre-dating the regulations if there is a fundamental change in how the building is used or substantial modifications made to the structure.

At the time of writing, 95% of social-housing blocks – home to 410,000 people – do not have any sprinkler system in place. A commission has been set up to review lowering the height of a building where sprinklers must be installed from 30 metres, or 10 storeys, to 18 metres or six storeys. However, any new rules will only apply to new-build housing blocks constructed after 2007.

The Sir Martin Moore-Bick Report

On 30 October 2019, the Chair of the Grenfell Inquiry, Sir Martin Moore-Bick, published the first phase of his report, which focused on the night of the tragedy.

The report stated that the spread of the fire was in two main stages. The first was the vertical spread to the top of the building. Although this was fast, it was consistent with the behaviour of similar fires.

The second stage involved the flames spreading horizontally across the roof and then downwards. This was not typical. Sir Martin stated that the presence of ACM cladding with a polyethylene core was the primary reason for both stages of the fire, and the cladding acted as a “source of fuel”.

Regarding the rapid spread of smoke throughout the structure, Sir Martin’s report stated the building “suffered a total failure of compartmentation”. There was an absence of self-closing doors and the existing doors could not contain the circulation of smoke.

Furthermore, and perhaps most damningly, the report concluded that it would be an “affront to common sense” to say the external building walls were compliant with building regulations, which state that the external walls should adequately resist the spread of fire, giving regard to the height, use and position of the building. Rather than containing the fire’s spread, the walls of Grenfell Tower “promoted it”.

Further investigations

The second stage of Sir Martin’s investigation and report will focus on the construction industry’s and government’s knowledge of the on the dangers of ACM cladding and why the building was deemed to meet regulatory compliance.

The inquiry into latest fire at Bolton may bring up separate issues which building owners need to address.

Private building owners who have not already done so are urged to take advice on both fire safety and if their buildings have dangerous cladding, the £200 million government fund to replace it with safer materials.

The Financial Times reported on 15 November 2019 that:

“Of 184 privately owned buildings with ACM cladding, developers, freeholders or warranty providers have agreed to pay for a total of 97 to be made safe. But just 15 of these have completed remediation work and it is only underway in another 25. The remainder can apply for government funds, but just 14 applications have been submitted ahead of the end of 2019 deadline, according to government figures released on Wednesday. That leaves between 13,300 and 17,100 households still in privately owned homes yet to be made safe, according to the government data.”

The Housing Secretary Robert Jenrick has threatened to name and shame private building owners who do not actively replace ACM cladding.

Final words

Being prosecuted for a fire-related health and safety offence should be taken extremely seriously. Getting the right advice from the outset can mitigate the risk of a disastrous outcome which could affect your professional and personal life for years to come.

Tanveer Qureshi specialises in health and safety and environment law. If you require legal representation, please contact Tanveer directly at tanveer@tqlegal.co.uk or via his chambers, 4-5 Gray’s Inn Square at tanveer@4-5.co.uk.

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Tanveer is a specialist in criminal and regulatory law. He has been recognised by the Times Newspaper as a legal star of the future and ranked in Legal 500 as a recommended barrister. Tanveer writes regularly on topics ranging from financial crime to regulation and terrorism law.
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