Glenn Horton, Fire Engineer
As the Principal of a specialist fire safety engineering practice the overwhelming majority of my work is in the built environment in the UK, lately I have been fortunate to work in many jurisdictions as far away as Mongolia, Nigeria and the Middle East amongst other places.
Prior to June 14th 2017, life as an expert working the field of fire safety was relatively quiet. I had been taking formal instructions and providing similar services for clients as part of my consultancy work since 1999.
My instructions were typically related to compliance with fire safety legislation resulting from enforcement action by fire authorities, sometimes post-fire enforcement and in some cases, as a result of damage arising as a result of a fire for insurance related claims.
There were of course, some cases related to allegations of non-compliance with contractual obligations related to fire safety, but they were in the minority in my experience.
However, since Grenfell Tower, the expert fire engineering community have been inundated with instructions relating to allegations of non-compliance of buildings with respect to cladding, which is unsurprising of course.
The majority of instructions relate to the question of whether or not an apartment building did, or did not comply with the Building Regulations current at the time of the design and construction, and whether or not the designers exercised reasonable skill and care.
Oddly, I am seeing fewer instructions by a long way, for other building occupancy types, despite the fact that the Regulations and guidance dealing with cladding for all buildings were the same (until regulatory changes in December 2018) which singled out high rise residential buildings for special consideration). I have seen one or two non-residential buildings subject to instructions, however the overwhelming majority of claims arise for apartment buildings.
The ‘modern trend’ with regards to fire safety law is for the regulations to be functional2or risk based3 which in effect means that the Regulations are objective led and not prescriptive. Whilst national guidance4 has been issued in support of such legislation, it is clear from a Regulatory perspective at least, that there is no obligation on the part of designers or building owners to follow such guidance if they wish5.
I routinely see instructions relating to claims predicated on a failure to follow the guidance as evidence that a building or element does not comply with the relevant statutory provision. Whether such an assertion, is adequate to sustain a claim of non-compliance or not seems to me to be a moot point, when factually there is no obligation to follow said guidance.
Many current claims include elements relating to the actions of designers with regards to the fire safety of a building and whether those designs were sufficient to show reasonable skill and care was exercised. The ‘Bolam test’6 gives guidance about what that may mean in practical terms, given the scale and numbers of alleged construction defect claims arising recently one can only draw one’s own conclusions about such allegations.
Whilst following statutory guidance may provide a defence to claims of non-compliance with the relevant legislation, it is similarly clear from a Regulatory perspective, that this alone is insufficient to demonstrate compliance. Recent guidance issued by MHCLG7 has highlighted that designers must look to the functional objectives and not rely on observance of the guidance alone.
This is particular so where an aspect of building design is not covered within a particular piece of guidance.
Invariably, my instructions are founded in terms of compliance with contractual terms, which in my experience rare rarely so conclusive as to be definitive in their own right despite the client in many cases thinking they are!
There are other issues which arise following the fire at Grenfell Tower which have an expert component to them and you may have heard of EWS1 forms8.
Factually the problem arises due to not unreasonable concerns on the part of lenders, over the potential need for expensive remediation to properties upon which mortgages are secured.
The costs can be eye-watering with costs of the order of several tens of millions for remediation to developments and the consequence of what I understand, are liabilities arising out of leases for apartments meaning mortgagees, in many cases are liable for such costs.
Increasingly I am being asked to opine on the basis of opinions expressed by consultants assessing cladding on buildings, especially where those opinions give rise to costly mitigation and remediation measures. In many cases, the costs of mitigation and any necessary remediation cannot be recovered from the 3rd parties and may not necessarily covered by the Governments fund.
This is an area where I foresee an increase in potential instructions over the coming months with reviews of ‘unfavourable’ investigations which may not be substantiated by reference to life safety risk as required by regulation.
Many of my instructions result in the need for fire testing of products or systems and I am routinely invited to help define test protocols and the criteria that would be acceptable in a given circumstance. This work is increasing if frequency and in some cases requires bespoke tests to be undertaken to assess the likely fire performance of non-standard construction details.
What has become more evident post Grenfell Tower is how limited the testing of products is with respect to fire safety.
As an example, I am working on an instruction related to preventing fire spread into cavities in an external wall. The product in question is what is known as a cavity closer, which is designed to bridge and close the gap between the inner and outer leaves of external walls around window openings.
I spoke to the manufacturer of a particular product to enquire what types of wall the product had been tested in. Had it for example been tested in a timber frame building, or a wall which had a brick outer leaf and metal frame system on the inside?
The response was it had only been tested between two leaves of masonry! The reason for no other tests was that they could not test for every possible configuration of external wall design and therefore they only tested it between two blocks of masonry, to paraphrase ‘it’s what everyone else is doing’!
You may well be aware of widely publicised concerns about how fire tests are conducted and the claims made by manufacturers, but the claim of ‘it is too difficult to test against everything’ is a claim often made in my experience.
I would accept that it is not possible to test for every possible condition, however what I am seeing is an absence of testing for common variations in application, such as timber frame buildings and brick/metal frame system interior walls.
Expressing an opinion as to how something may or may not perform in a fire condition in the absence of any evidence to support such opinions would seem to me to be fraught with difficulties particularly where litigation is involved.
Whilst testing may add to costs in the short term, medium to long term, a tested system is more likely to be acceptable to all parties involved in litigation, and of course, is likely to be favoured by courts as opposed to opinions expressed without evidence to support them.
Post Grenfell Tower, my instructions have primarily been related to high rise residential buildings, and in this context, by residential I mean apartment buildings which are either privately occupied or rented accommodation.
However, the Regulations and guidance covering the nature of external walls of buildings is generic and applies to all classes of buildings and so my view is that there is the potential for other classes of building to be similarly affected by potential claims. I have seen a number of instructions related to other types of residential and commercial buildings affected by cladding issues, particularly student accommodation and hotels. I can see this trend continuing and perhaps broadening to other classes of buildings where the nature of their construction becomes of interest to owners, purchasers and lenders.
All in all my days are busy, the number of potential instructions compared with the number of practising fire engineering experts means that there are more instructions than experts able to take them.
Conflict checks are paramount as conflicts are commonplace given the fact that most of those working as experts (including me) have worked or are working as project fire engineers as part of their ‘day job’. However, I am a firm believer that working on projects, being involved in the design and construction of buildings makes one a better expert.
When I left the fire service in 1999, little did I know of the interesting and rewarding work I would be able to undertake, my father always said that my degrees would open doors to me, that has proved so true.