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18 October 2019

Queen’s Speech 2019: Grenfell Tower Law

Originally published on LexisLibrary and LexisPSL.

The Queen’s speech included legislation to implement new building safety standards in light of the Grenfell Tower incident. The purpose of the legislation is to put in place new and modernised regulatory regimes for building safety and construction products, ensuring residents have a stronger voice in the system. Karen Kirkham, head of construction at BDB Pitmans LLP, and Richard Flenley senior associate at Charles Russell Speechlys LLP both comment on the need to define who is responsible for driving change in building regulations, and Kirkham raises the prospect of a ‘a process driven tick in the box’ system being more efficient.

The key elements of the legislation are:

  • a new safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety and providing clearer accountability, strengthening enforcement and sanctions to deter non-compliance with the new regime and implementing a new framework to provide national oversight of construction products, to ensure all products meet high performance standards;
  • developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved; and
  • legislating to require that developers of new build homes must belong to a New Homes Ombudsman.

The main benefits of the legislation would be:

  • learning the lessons from the Grenfell Tower fire and bringing about a fundamental change in the regulatory framework for high rise residential buildings, and the industry culture to ensure accountability and responsibility; and
  • ensuring residents are safe in their homes.

Kirkham emphasises the need for responsibility to be designated over Grenfell and proposes a ‘tick the box’ process for building regulations:

‘We still don’t know to whom and to what blame will be attributed for the Grenfell Tower fire. Arguably, the legal mechanisms to prevent another Grenfell already exist, in particular, in the form of the CDM Regulations, contractual prohibitions on ‘deleterious materials’ and a designer’s duty to warn a client about the safety implications of a particular design.

However, it would be helpful, as many commentators have suggested, if the approach to Building Regulations and fire safety approvals ceases to be a matter of a process driven ‘tick in the box’, so that developers and their professional advisers are under a positive duty to ask themselves if a particular design or material or method of work is safe.

Hopefully such a change would lead to a more proactive approach by project teams to safety in high rise buildings, and not a tussle between developers looking to outsource risk and Personal Injury insurers refusing to cover it, as has happened in the past with issues such as toxic mould and asbestos.’

Flenley agrees that more clarity is needed over responsibility:

‘Building safety—particularly of high-rise residential buildings—is clearly of fundamental concern to the industry and wider interest groups. However, what is lacking from the information currently released is:

• exactly what is being proposed; and

• who it is that is going to be responsible for implementing and paying for the changes

In this field—perhaps more than any other within the proposed legislative programme—a high level of clarity is required in order to avoid the otherwise likely raft of litigation, whether from those already affected by deficient buildings or those currently in the construction pipeline.’

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