The Oxford Conference: Challenges

The Grenfell Tower Inquiry: Key Issues, Key Findings. (Justin Bates, Landmark Chambers)

This provided a sobering reminder of the limited progress made since the Grenfell Tower disaster on 14 June 2017. In the immediate aftermath of the fire, there was a collective failure to take responsibility by the Royal Borough of Kensington and Chelsea and central government. Now, however, four strands have emerged: firstly, the Inquiry chaired by Sir Martin Moore-Bick; secondly, the police investigation (and, perhaps, charges and trials of those thought to be criminally responsible); thirdly, civil claims, both in the UK and the US; and finally, likely proceedings in the coroner’s court.

It is important to recall the purposes and the limitations of the Inquiry. Its aim is to establish facts, but it cannot itself determine civil or criminal liability (although its findings might very well lead to conclusions on both). It has also been tasked with making recommendations for the future, and is intended to restore public confidence. Justin Bates made it clear, however, that it is an open question as to whether or not it will achieve that. What it has achieved, however, is a greater awareness of fire safety issues and management.

The Inquiry is broken into two phases. Phase 1 is concerned with the events of the night itself, but we do not know when the Phase 1 report will come out. One point that has emerged is that the tenants’ concerns about the building were completely ignored in the run-up to the fire. The residents had done everything right: they had petitioned MPs, met councillors, formed groups etc., but they were ignored. What else could they have done to raise their concerns? Justin Bates opined that the answer is, almost certainly, nothing.

Phase 2 of the Inquiry is supposed to start in early 2020. It will look at wider issues of responsibility. It will also consider recommendations for reform, both for central government and wider changes to the regulatory regime. We do not know how long it will run for, although there are some predictions that it could last for two years.

How my life has been affected. (Ritu Saha, leaseholder from Northpoint)

Ritu Saha spoke powerfully about the extraordinary impact this is having on leaseholders. In late 2017, two years after she purchased her flat in Bromley, she discovered a 24-hour patrol was necessary due to faults with the fire alarm. Having initially thought it would be provided free of charge, she was shocked – overwhelmed – when a neighbour told her that the patrol would cost £6,500 per week. Things then went from bad to worse. Just before Christmas 2017, the fire brigade served an enforcement notice in respect of the cladding on the building. To remediate it would cost in the region of £2.5m to £3.5m for the 57 flats, and the leaseholders would have to pay under the terms of their leases.

This was an extremely anxious time for Ritu. To reduce the service charge costs, she personally patrols the building after work, and she has become a campaigner. Of course, she is also worried about the risk of fire. She described how, every day, she comes home from work and sees this silver material that is ruining her life. Yet she, as the leaseholder, is the last person responsible for this situation. Unlike with fridges or other consumer products, there are no laws in place to protect leaseholders when the product purchased is faulty and dangerous. She did not build or design the building: Bromley Council undertook the building control; the government passed the building regulations. Indeed, she had bought her lease some 15 years after it was built, but now she finds herself, with the other leaseholders, as the only person responsible. In her case, it is not even clear yet if her building will benefit from the government’s remediation fund.

Perspectives from Australia. (Jeanette Barbaro, Australian law firm Minter Ellison)

In the final talk in this panel, Jeanette Barbaro, a partner involved with construction law, explained what is happening in Australia. Australia’s marketplace has been driven by the need for innovation and cost effectiveness. Regulatory changes in the 1990s encouraged faster and cheaper building. Building regulations were relaxed, making them performance based. It was not until recently that the risk of using combustible materials was discovered. In November 2014, there was a serious fire at the Lacrosse building in Melbourne. It began in the morning of 25 November 2014, ignited by a discarded cigarette on the balcony of an apartment before it quickly spread down to level 6 and up to level 21. The resulting court decision (which is the first in the world to deal with combustible cladding to a high-rise residential building) confirmed that the fire was exacerbated by the use of aluminium composite products (‘ACPs’). Only now, several years later, is the building being rectified.

Other fundamental issues with building construction have also been uncovered, as can be seen from photos in her slide presentation. There are problems with structural defects, mould and water ingress. The 38-storey Opal Tower was evacuated in December 2018 for supposed structural defects. The Neo200 fire in Melbourne took place in February 2019. Following the fire, and various ensuing investigations, fire safety issues (beyond cladding) that had previously been unknown were brought to light and the amount of work required to improve fire safety increased. Since then, the Mascot Apartments were evacuated in June 2019 due to concerns as to its structural integrity and more recently the Mordialloc building was evacuated in August 2019 on account of its combustible cladding and water leaks leading to a mould outbreak – combustible cladding is far from the only issue.

Jeanette Barbaro described this as a multi-dimensional problem. According to her, building regulations in Australia have been performance-based and have failed to be more prescriptive where perhaps they should have been. As a result, they have encouraged faster and cheaper building. This has introduced a ‘field of opinions’ into Australia’s building regulation system. The buck may stop with the building owner, but they may not necessarily be the party responsible for constructing the building: they buy what is built by others. The ‘field of opinions’ spans the nation as there is no national, Australia-wide model for building regulation.

There is no ‘one way, same way’ to tackle these issues. Each building requires a different solution. Sometimes it is partial removal, other times it is full removal and replacement of combustible cladding. Building owners’ insurance is also a struggle. There is also a need for better education: regulatory changes allowing owner-builders permitted a new industry of less experienced, unsophisticated builders. Moving forward, we need to ensure that they have the right expertise.

Being a federal system, different states have responded differently to the cladding crisis for residential buildings – the range of approaches is shown in slides 12 and 13. The most fulsome is Victoria where the government has introduced a $600 million package to fix private buildings with combustible cladding.

At the same time, commercial building owners are left to fend for themselves. Victoria has also a Building Appeals Board that is empowered to make determinations about compliance with building regulations, cutting through the ‘field of opinions’ when it is proposed to either use or leave in place combustible cladding: there is access to an ‘arbiter of the truth’ able to determine compliance with building regulations before, during and after design and construction. The Shergold Weir Report, titled ‘Building Confidence – Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia’, published in February 2018, made a series of recommendations. One proposal, for example, is to introduce a building information database to retain design and construction documentation about buildings. The Building Ministers’ Forum and each of the States is currently considering to what extent those recommendations will be implemented. There has been agreement in principle, but there is still no Australia-wide combustible cladding ban: only New South Wales had introduced a cladding ban, taking effect about 18 months ago, with respect to combustible panels with over 30% polyethylene in their core. The possibility of regulatory reform in Australia is real.

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How to cite this blog post (Harvard style) 

Bright, S. and Sawtell, D. (2019). The Oxford Conference: Challenges. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/10/oxford-conference-challenges/ (Accessed [date])