Natalie Pilagos is a partner in the construction team at Wedlake Bell
The Spectrum House fire in Dagenham raises the question of why avoidable fires on residential buildings are still occurring, seven years on from Grenfell. In the cladding remediation process, there are persistent fire safety risks, as unsafe buildings are being covered in scaffolding for long periods while cladding remediation takes place.
“Obtaining any relevant planning permission and regulatory approvals is not straightforward”
The reasons for the slow pace of cladding remediation are extremely complex and set against the backdrop of wider issues in the construction industry, regulation, litigation and funding for the works.
Identifying scope while preventing future litigation
It takes time to identify and agree the scope of the remediation required, which might need several parties and their advisors to witness and document opening up work to existing buildings. This can often uncover more defects that parties have to take more time to deliberate how to address. Remediation carries the inherent risk of not knowing the full condition of the building until work begins.
The party carrying out the remediation must then carry out the required work in a manner that does not leave them exposed to allegations that they have not quite implemented the right scheme or carried out unnecessary work. Equally, they need to be sure they are doing all they need to remedy the known issues and take into account the likely condition of materials that cannot be fully inspected until works start.
Determining the correct remedial scheme and then applying or obtaining any relevant planning permission and regulatory approvals is not straightforward. Input from fire engineers is key to this, but the numbers of accredited individuals in this are limited. This in itself has been identified as a key issue within the Grenfell Inquiry. In addition, from a litigation perspective, it is often better if the original construction parties are involved with opening up work but they are often reluctant to assist.
A process prone to procedural and practical setbacks
Once there is an agreed scheme, the planners and the relevant building control authority (which will be the Building Safety Regulator on higher-risk buildings) may have changes or queries. The process of procuring the work with a suitable contractor, ordering the appropriate materials and progressing works around building occupants can be challenging. It must be remembered that these buildings are often in urban areas where site set-up, access and material storage can be complex.
Challenges can also arise during this work. For example, The cladding remediation contractor became insolvent halfway through the works for Dalston Square. This meant the project was left on hold and covered with scaffolding indefinitely for years.
No regulatory recourse for delays
Leaseholders can do little to speed up this process. The Building Safety Act (BSA) 2022 has introduced remedies such as Remediation Orders and Remediation Contribution Orders that empower the First-tier Tribunal to compel landlords and developers to address building defects or contribute financially to remediation efforts.
However, these remedies are not necessarily an effective mechanism for leaseholders to speed up slow progress on ongoing work. Although they could be used to obtain an order that specifies timescales to hold the building owner to account, doing so will have a cost and is not a straightforward process for individual leaseholders.
Streamlining complexity with a single regulator
The BSA has made strides in addressing building safety, but its effectiveness remains limited by slow progress and a fragmented regulatory landscape. The Grenfell Inquiry’s recommendations included the creation of a single construction regulator to oversee all functions relating to the construction industry. This seems logical and if implemented could potentially streamline processes, reduce delays, and ultimately prevent further incidents.
However, in a time where public finances are constrained, whether this is feasible is another question.
