A commitment to fix the system – the government’s response to the Grenfell Tower Report

We all recall the horrors of the Grenfell Tower tragedy on 14 June 2017 which resulted in the loss of 72 lives and many more being made homeless. The fire, which breached compartmentation of the block, represents the greatest loss of life in a residential fire in a century.

Following on from the tragedy, the government commissioned an independent review of the building regulations and fire safety to be led by Dame Judith Hackitt, an engineer and civil servant. On 18 December 2017 Dame Hackitt published her interim report in which she diagnosed issues with the current building safety regulatory framework and concluded that it was “not fit for purpose”. Subsequently, in May 2018, she published her final report which set out 53 recommendations to the government in order to address the deficiencies in the current regulatory regime. Dame Hackitt’s recommendations are wide in scope and cover everything from the planning phase of a higher risk residential building which is ten-storeys or more in height (and in some cases other buildings too) right through to BIM and building materials.

In this article, lawyers Ian Atkinson, Angela Lopes and Lucy Hadrill from Womble Bond Dickinson, focus on the government’s response to the Grenfell Tower Report and what this means for the construction industry.

The government’s implementation plan

On 18 December 2018 the government published its long awaited ‘Building a safer future – an implementation plan’ (the Plan), the government’s formal response to the recommendations set out in Dame Hackitt’s Independent Review of the Building Regulations and Fire Safety (May 2018) (the Review). The general response is that the government agrees in principle with the majority of the recommendations put forward by Dame Hackitt and will consult on the specific details in Spring 2019. The government has also confirmed that it “has not hesitated” to go beyond the scope of the Review where deemed appropriate and this is shown by the government’s recent ban of combustible cladding material from the external walls of new high rise homes over 18m, which the Review did not include. The government’s response is not surprising given the enormous political pressure to ensure that the tragic loss of lives caused by the Grenfell Tower fire is not repeated.

This article summarises the government’s response to the recommendations set out in chapters one (Parameters and principles of a new regulatory framework) and two (Design, construction and refurbishment) of the Review as they represent the recommendations most relevant to organisations active in the design, construction and refurbishment of higher risk residential buildings which are 10 storeys or more in height (HRRBs). Affected parties should also be conscious of the government’s response to the recommendations set out in chapters five (Competence), six (Guidance and monitoring to support building safety), seven (Products) and eight (Golden thread of building information) of the Review as they are also relevant to the industry. The Plan includes a useful consolidation of the government’s response to each recommendation at Annex A, which is available for further reading here.

The government’s response to chapters one and two of the Review

We have set out the recommendations made in chapters one and two of the Review, the government’s responses and our commentary in the table here. Some of the key recommendations include a new regulator for HRRBs, the JCA, as well as a new JCA Gateway approval process for HRRBs whereby developers will be required to obtain JCA clearance during three phases of development: the planning stage, before construction works commence and before occupation commences. In addition, Dame Hackitt also recommends a new change control process whereby variations during the construction phase of an HRRB will require prior approval by the JCA.

What does this mean for the industry?

There is no doubt that, if implemented in full, Dame Hackitt’s recommendations represent fundamental regulatory reform in the manner in which HRRBs are regulated in England and Wales. Whilst the construction industry welcomes the concept of safer homes, it will have to prepare itself to comply with any new regulatory regime and to take on board that the new regulatory regime may well result in additional cost, disruption and administration, particularly during the teething stage of the new regime. Developers and funders should also be conscious that the Review suggests extending aspects of the new proposed regulatory regime, such as items (ten) and (13) in the table, to cover MORBs which will result in even wider ramifications for the industry.

For now, the government has merely indicated its agreement in principle to some of the recommendations at this stage. The full extent and form of its implementation will be unclear until the consultation phase in the Spring. It is however interesting that the government has not indicated its unequivocal support for all of the recommendations made in chapters 1 and 2 of the Review. Only time will tell the precise extent of implementation by the government but, in the meantime, affected parties should continue to monitor developments and fully participate in the consultation process in order to shape the government’s decisions.

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