“Grenfell Tower: Government will consult on cladding ban”; “‘We’ll consult’: Government won’t commit to banning flammable cladding after fury over Grenfell review”; and “Grenfell-style cladding could be banned on tower blocks, government says”
“… I recently welcomed Dame Judith Hackitt’s final, comprehensive report following her independent review of building regulations and fire safety. In response, I committed to bringing forward legislation to reform the system of fire safety and give residents a stronger voice. Having listened carefully to concerns, the Government intend to ban the use of combustible materials on the external walls of high-rise residential buildings, subject to consultation. We will publish the consultation next week.”
“I am clear we will not hesitate to go further than the Hackitt recommendations where we deem it necessary. Not only have we launched a consultation on proposals to restrict or ban the use of so-called desk top studies (assessments in lieu of tests) for cladding materials, as recommended by Hackitt, but we have also launched a consultation on proposals to ban the use of combustible materials in the exterior wall construction of high-rise buildings.”
“The BBSA represents approximately 400 companies involved in the manufacture, sale and installation of all types of blinds, awnings and shutters. The BBSA’s members employ around 5,000 individuals and I estimate the BBSA is responsible for over 50% of all blinds and shutters installed in the United Kingdom. The shading industry in the UK has an annual turnover of around£800m and directly employs approximately 16,000 individuals.”
“Before making any building regulations containing substantive requirements, the Secretary of State shall consult the Building Regulations Advisory Committee for England and such other bodies as appear to him to be representative of the interests concerned.”
“Before making any building regulations containing provision of the kind authorised by paragraph 11(1)(c) of Schedule 1 to this Act, the Secretary of State shall consult – (a) the Building Regulations Advisory Committee for England, (b) such persons or bodies as appear to him to be representative of local authorities in England, and (c) such other bodies as appear to him to be representative of the interests concerned.”
““specified attachment” means – (i) a balcony attached to an external wall; (ii) a device for reducing heat gain within a building by deflecting sunlight which is attached to an external wall; or (iii) a solar panel attached to an external wall.”
“Subject to paragraph (3), building work shall be carried out so that material which become part of an external wall, orspecified attachment, of a relevant building are of European Classification A2-s1, d0 or A1, classified in accordance with BS EN 13501-1:2007+A1:2009 entitled “Fire classification of construction products and building elements. Classification using test data from reaction to fire tests” (ISBN 978 0 580 59861 6) published by the British Standards Institution on30th March 2007 and amended in November 2009.”
“Before making an industrial training order the Minister shall consult any organisation or association of organisations appearing to him to be representative of substantial numbers of employers engaging in the activities concerned and any organisation or association of organisations appearing to him to be representative of substantial numbers of person employed in those activities; and if those activities are carried on to a substantial extent by a body established for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, shall also consult that body.”
“There is a little more to be said for his submission that the mere sending of the letter of April 26, 1966, constituted consultation in that the Shorter Oxford English Dictionary gives as one definition of the verb “to consult” “to ask advice of, seek counsel from; to have recourse to for instruction or professional advice.”
“Consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate. Ensure they are aware of the consultation and can access it. …”
“Section 14 of the Building Act 1984 requires the Secretary of State before making regulations to consult with BRAC and such persons or bodies as appear to him to be representatives of local authorities and such other bodies as appear to him to be representative of the interests concerned.”
“20. Given the technical complexities associated with specifying the scope of the ban and implementing it, and the wide range of parties with an interest in the policy detail, it was decided to carry out a full public consultation, in line with usual practice when changes are made to the building regulations. This involved publishing the consultation paper and giving anyone with an interest the opportunity to comment on our proposed approach. 21. It is acknowledged that the Department was aware of BBSA and had met to discuss the benefits of their products to address overheating in homes in 2017. Subsequent to the consultation the BBSA contacted the Department with a question relating to whether there were requirements in the Fire Safety Order (FSO) on fire retardant materials which was referred to the HomeOffice as the Department responsible for the FSO. However, the Department works with a large number of industry bodies on a wide range of issues. As noted above, due to the number of interested parties the Department did not selectively choose consultees on the policy, but rather carried out a fully public consultation that was well-publicised.”
“The issue appears to me to be whether there is a general requirement or duty, as part of the requirement or duty to act fairly, to notify individually those likely to be substantially affected by planning proposals. My conclusion is that there is no such requirement. Had Parliament intended such a general requirement, I would have expected to find it specified in the statute along with other requirements which have been included. I bear in mind the importance of finality and the difficult questions which would arise as to whether a particular interest was affected by a particular proposal to the extent that individual notification ought to have been given.”
“Publication on the website was a process of consultation used by the Council, and the notifications actually given of the consultation in this case are clearly in general terms adequate. The claimant says that it was entitled to an individual notice that a consultation process was running. That entitlement would have to be derived from the law, or a promise, or a legitimate expectation. There was no legal requirement to notify the claimant individually, and there was no express promise to do so.”
“There are no awnings, shutters, blinds or moveable (dynamic) shading products which would meet the requirements of noncombustibility under the changes to the Building Regulations. It is not currently possible to manufacture a blind fabric to the classes specified in BS EN 13501. There are many fabrics (textiles) that meet the varying national flame retardancy standards but there has been no commercial reason to manufacture blinds, awnings and shutters to the level of fire proofing now required. Further, this British safety standard is not a test of the complete product but an assessment of its components. A mechanical product requires certain elements for it to function that are combustible but they represent such a small proportion of the product as a whole as to have a minimal effect on fire spread. Therefore the Amended Regulations now constitute a ban on such products on all relevant buildings.”
“Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. …Second, in the words of Simon Brown LJ in the Baker case, at p.91, “the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.””
“This consultation seeks views on the proposed ban of combustible materials. The proposal is in line with the Secretary of State’s commitment in Parliament on11 June 2018 to consult on banning the use of combustible materials in theexternal walls of high-rise residential dwellings.”
“The first is for each individual component of the wall (surface, insulation, filter, etc) to meet the required standard for combustibility. The second is to ensure that all the combined elements of a wall, when tested as a whole installed system, adequately resist the spread of fire in accordance with the (British Standard) BS 8414 test.”
“11. However, the Government also recognises the concerns that the BS 8414 test does not offer as straightforward a way of meeting the requirements of the Regulations as would a ban on the sue of combustible materials. We also note Dame Judith’s view that using products which are non-combustible or of limited combustibility is undoubtedly the lower risk option. The Government therefore considers it right to consult on a ban which would as a consequence remove the flexibility offered tocladding design by the BS 8414 test on high-rise residential buildings. 12. We are minded to make the change through legislation by amending the Building Regulations to include a specific ban. …”
“Cladding is the layering of a number of materials to form the external fabric of a building. In construction, cladding is used to provide a degree of thermal and acoustic insulation and weather resistance, and to improve the appearance of buildings. This can be placed on a building during its construction or during a refurbishment.”
“20. The proposal is to ban the use of materials which do not meet class A1 or A2 from use in the walls of residential buildings which are 18m or over. The external wall in such buildings is usually separate from the structural frame. The ban would cover the complete wall assembly, including the innerleaf, insulation and the façade or cladding which provides theoutermost layer of the external wall. 21. There is a wide range of technologies used in theconstruction of external walls for tall buildings which might not always be considered to be cladding. Each technology presents different potential mechanisms for fire spread. 23. We have considered limiting the ban to the following products: • Banning Aluminium Composite Material with a polythene core. • Banning combustible “rainscreen” products (panels used to form the external face of the wall). • Banning combustible insulation products (whether behind a rainscreen or otherwise incorporated into a wall). 23. However, each of these options would still allow the use of other combustible materials with the potential significantly to contribute to fire spread. This would not meet the policy intention. We therefore consider that for a ban to be effective it should cover more than just the surface of a wall and any insulation materials and instead cover the entire wallconstruction from the internal face of the wall through to itsexternal face.”
“24. Moreover, there have been situations where the materials used in the construction of balconies and window spandrels have been implicated in vertical fire spread. We consider that a ban should also include similar components of the external wall/façade and attachments to the external face. Question 6. a. Do you agree that a ban should cover the entire wall construction? b. If no, what aspects of the wall should it cover? c. Should a ban also cover window spandrels, balconies, brise soleil and similar building elements?”
“40. The new classification for external ‘sun shading’ products (blinds, shutters and awnings) is disproportionate. The risks posed by sun shading products is so minimal that it is disproportionate to ban their use as a significant proportion of the materials of an external sun shading system are noncombustible metals such as aluminium and steel which are deemed compliant to Class A1 without testing by commission decision 96/603/EC. … 54. As the products of BBSA members are made of thin materials, the ability for them to retain fire is not likely. They would certainly not have the problem of heat build-up and retention seen on Grenfell Tower. There has never been an issue requiring CE Marking on our members’ products but adequate consultation would have given time for testing and assessment, if required. 55. Unlike the cladding on Grenfell Tower – or brise soleil, balconies, window spandrels, photovoltaic panels and green walls – our members’ products are not façade covering in the same way and so fire spread is reduced, especially when fitted to normal cill height where there would be an effective fire break of at least a metre.”
“Through this development work, it quickly became apparent that this objective would not be met if the ban only covered combustible materials in cladding systems. This is because materials used in other parts of the wall system could lead to fire spread. In particular there was strong evidence thatattachments to the external wall could exacerbate fire spreadand undermine compliance with requirement B4 of Schedule 1to the Building Regulations. The Building Research Establishment had published a report on this in 2016. There had been a significant balcony fire in Manchester in December 2017 and a fire at a London hotel.”
“Give enough information to ensure that those consulted understand the issues and can give informed responses, include validated impact assessments of the costs and benefits of the options being considered when possible; this might be required where proposals have an impact on business or the voluntary sector.”
“71. The scope of the police includes all elements of the wall construction from the outer to the inner faces. However, it was agreed by the majority of respondent that some exemptions would be required for components where non-combustible alternative are currently not available. 72. The exemptions are based on the collation of responses provided during the consultation. The products included in the list include products for which a Class A1 or Class A2-s.1,d0 does not exist or is not readily available. …”
“External shading is recognised as one of the most effective means of controlling overheating by preventing the solar gain from reaching the windows.”
“153. Under our constitution policy-making at the national level is the responsibility of democratically-elected Governments and Ministers accountable to Parliament. As Lord Hoffmann said in R (Alconbury Developments Ltd) v Secretary of State for the Environment[2001] UKHL 23 ;[2003] 2 AC 295 at [69] and [74]: “It does not involve deciding between the rights or interests of particular persons. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.” 161. As we have described, section 5(4) and 9 of the PA 2008 requires an NPS to be scrutinised by parliament before designation… In one of the authorities to which [Counsel] referred us, R (SG) v Secretary of State for Work and Pensions[2015] UKSC 16 ;[2015] 1 WLR 1449 at [94], Lord Reed JSC reiterated the observation of Lord Sumption JSC in Bank Mellat v HM Treasury (No.2)[2013] UKSC 39 ;[2014] AC 700 at [44] that where Parliament has reviewed a statutory instrument, respect for Parliament’s constitutional function calls for “considerable caution” before the courts will hold it to be unlawful on a ground falling within the ambit of Parliament’s review. In a challenge to the introduction of a cap on welfare benefits for claimants in non-working households raising discrimination arguments as between men and women, Lord Reed said that proportionality issues involving controversial issues of social and economic policy with major implications for public expenditure were pre-eminently the function of the democratically elected institutions. The need for the court to give due weight to the considered assessment made by those institutions meant that it had to respect their view unless “manifestly without reasonable foundation”
“The Regulations were prepared with the knowledge that some product which may be used safely in some configurations will no longer be permitted, but it was also decided that this was outweighed by the need for clear and unequivocal requirements providing the industry with a clear way forward and delivering the necessary level of public safety.”
“8. The policy was developed on a careful consideration of what materials would pose a specific risk within the external wall and the elements which could be attached to the external wall of a building. The Department was aware of a number of incidents where attachments to a wall had resulted in fire spread over that wall, thus undermining the intent of requirement B4. 9. Question 6 in the consultation asked, “Should a ban also cover window spandrels, brise soleil and similar building elements?”