3PB calls for Australia-style laws after Grenfell Phase 1 Report

Two of 3PB’s specialist construction barristers have today called for Australia-style legislation for the house and building construction industry after the Grenfell Report.

This morning, the Grenfell Tower Inquiry, chaired by Rt Hon Sir Martin Moore-Bick, delivered its Phase 1 Report.  The publicity leading to the report foreshadowed conclusions that will make uncomfortable reading for the fire brigade, although reflecting the heroism and devotion of the fire fighters themselves as well as for some in the construction industry.

The report paints a frightening account of the spread of fire through Grenfell Tower, including an account of the fire rushing up the outside of the building to the crown, and then moving down another side, by burning material dripping to lower levels, which then combined so the fire moved upwards, downwards, and diagonally at the same time.

3PB’s Construction and engineering barristers Philip Bambagiotti and Nick Kaplan commented that “although this Phase 1 report has a lot to say about the fire brigade, significant issues for the building & development industry are also raised which make uncomfortable reading."  Nick Kaplan, who was involved in the early phases of a "desk-top" review of the events leading to the fire at Grenfell said: “the findings discussed in Chapter 26 explore how the use of the now-notorious rainscreen cladding system which incorporated combustible materials was part of a failure to comply with the Building Regulations 2010. This is significant because, although it was the cladding product that was to blame, the rationale for finding breach will not necessarily be limited to aluminium cladding.  The Inquiry’s reasoning justifies a re-think of the design and building decisions taken with respect to buildings such as Grenfell. Phase 2 of the Inquiry is likely to make recommendations that will significantly impact the building control approval process on tall buildings.”

The two 3PB barristers’ statement went on: “The industry is left, however, in a tantalising limbo, waiting for the Phase 2 Report, which is promised to involve a critique of ‘why those who were responsible for the design of the refurbishment considered that the tower would meet the essential requirements for compliance with the regulations'.  That description itself gives a sense of foreboding and that the report noted that: “What really matters is that the design of the refurbishment, the choice of materials and the manner of construction allowed an ordinary kitchen fire to escape into the cladding with disastrous consequences." Phase 2 will, of course, deal with the question of how such a flawed design/construction was ever able to get approval and 3PB commented that this aspect of the report "emphasised that there is a real problem for the construction sector as a whole to consider.”

For the development/construction industry, two issues emerge immediately from the Phase 1 report. Firstly, assumptions about the capacity of fire & rescue services to fill the gaps left in fire safety provision in building design & construction should be downgraded even further (if ever it was justifiable to make those assumptions in the first place).

Secondly, prudent industry players will not wait for the Phase 2 report before taking a root-and-branch consideration of processes and procedures that they employ & rely upon in their design and construction (particularly the quality control procedures) activities. The finding that the use of the cladding was a breach at the time it was specified and used (as opposed to being recognised as a breach after the fact), gives rise to the prospect of claims for breaches of duty (contract, tort, and statute) being brought with respect to those kinds of features in the existing building stock; since Grenfell it has become apparent that similar (non-compliant) cladding systems have been used on many hundreds of tall buildings across the UK.

This is likely to involve attempts to apply, and even to extend and to stretch, application of the Defective Buildings Act 1972, possibly the Misrepresentation Act 1967, as well as in contract, tort, and the like.  The current position of comfort that many draw from the Courts’ current views as to the limits of the reach of negligence: see  Herons Court, the Lessees And Management Company of v Heronslea Ltd & Ors [2019] EWCA Civ 1423 (14 August 2019), may well warrant a re-think in an environment in which financial (and even physical) disaster might visit home owners who have no other avenue for relief against those professionals the community might see itself as relying upon for the integrity of its built environment.

Joint-UK and Australian qualified 3PB barrister Philip Bambagiotti said : “Many criticise the technicality and limits of the Courts’ approach to economic loss tort for negligence in building work.  The absence of a properly systematic recognition of a satisfactory allocation of risk and responsibility amongst all those involved in high-rise apartment developments (which are manifesting these kinds of dramatic problems – although, thankfully, not as dramatic as in Grenfell) is a gap.  A gap in allocation of risk & responsibility in an industry, such as building & development, necessarily leads to a inequality and overall economic loss for the community as a whole."

Drawing on his considerable experience as the barrister in the landmark building defect cases in New South Wales (NSW), Bambagiotti commented that:"In order to address this dysfunction in the building industry, the New South Wales (Australia) parliament has before it the Design & Building Practitioners Bill 2019 that includes the introduction of a statutory duty of care to provide tort liability for professionals in the building industry, where there is presently a gap. Many say that that statute should really be declaratory, because the kind of behaviour that it addresses was never acceptable. That being said, we all may hope that the courts in the UK take an opportunity to revisit these issues soon.”

Bambagiotti commented:"once it has finished enjoying itself with Brexit debates, Parliament may consider legislation to a similar effect as that in New South Wales – to put the issue beyond question, and to bring a fair marriage between risk control and liability in the complex field of home & building construction."

Building & construction, including residential construction and development, and particularly aluminium cladding cases and the liability of professionals, are a particular interest of 3PB’s specialist construction barristers, both in the UK and abroad.  Their lawyers have been heavily involved in managing disputes involved in these issues in the UK, the Middle East and South East Asia and Australia.  Philip Bambagiotti is the leading author on residential building dispute in Australia, and has been heavily involved in the debates & considerations that led to the Design & Building Practitioners Bill. Nick Kaplan has acted on a number of cases involving tall buildings with cladding defects.