Don’t make construction industry mark its own homework

Unless clear guidelines on fire safety are put in place, we could face another Grenfell-style tragedy, writes Barry Hembling

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May 25, 2018
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Dame Judith Hackitt’s final report into building and fire regulations after the Grenfell Tower disaster makes good recommendations but fails to answer some difficult questions.

It calls for a radical rethink of the entire system with updated duties, overseen by a new regulator, for developers, designers, contractors and landlords on some building projects. They will be required to account for the safety of their completed buildings by showing that their plans are robust.

But it fails to address whether combustible cladding ought to be banned or whether new measures should be more widely introduced to avoid a two-tier system for building regulation. These points have been left for the government to decide.

The proposals mark a shift away from guidance being updated by the government towards a principles-based approach to building regulations. Successive governments have shown themselves to be incapable of providing a proper regulatory framework, so the industry is now being asked to have a go.

However, considering that the report condemned the industry’s culture of ignorance and indifference to building safety, making the same industry responsibility for building regulations and fire safety seems to be an unusual proposal.

Although Dame Judith says that there is too much prescription in the system, the risk is that the proposals will create a lack of detail, leading to unsafe outcomes or inconsistent results between buildings. It remains to be seen whether we can have confidence that the industry will exercise its new discretion safely in the absence of clear guidelines.

It is unclear how these tensions will be reconciled, although the report acknowledges that updated codes of practice will be required to assist duty holders during a building’s occupation and maintenance stages.

If there is to be a continuing role for codes of practice, why not make these available during the design and construction phases?

The long process towards creating a proper regulatory system has just started. If these proposals are really to make a difference there must be an outcomes-based approach to safety, supplemented by robust and regularly updated codes of practice that respond to new technologies and techniques.

The obligations on duty holders must be made clear through enhanced construction, design and management regulations so there are no doubts as to how discretion is to be exercised, or what safe design, construction and maintenance looks like.

Unless industry is given sufficient guidance as to how its new discretion ought to be exercised, the proposals will not herald the profound change in safety that the report aspires to deliver and they will certainly not prevent another Grenfell-style disaster.

Barry Hembling is a partner in the construction and engineering team at the London law firm Fladgate

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