Dispute Resolution

Given the increased scrutiny of building cladding following the fire at Grenfell tower in 2017, and the discovery of potentially flammable cladding materials in Scotland, building owners in Scotland await keenly the new legislation governing fire safety which is expected later this year, in order to determine whether they will be required to remove potentially combustible cladding from their existing building stock.

Last month, the Scottish Government’s Ministerial Working Group on Building and Fire Safety published its report on fire safety, which outlined the changes to building regulations and safety that will be introduced following their review of the current regime. A synopsis of the changes outlined in the report is available from the BBC.

Cladding Standards

Until the draft bill is published, building owners will be left uncertain as to the extent to which their obligations will change, including whether they will be obligated to “retrofit” their building stock by removing and replacing cladding.

The new legislation is expected to reflect the recommendations of the Building Standards (Fire Safety) Review Panel. The Panel recommend that:

  • the Technical Handbooks should be revised to require the use of A1 or A2 cladding systems on all domestic and non-domestic buildings with a storey over 11
  • m above ground level,
  • all entertainment and assembly buildings, residential care homes and hospital buildings or any height will also have to comply with A1 or A2 cladding standards, and
  • the standards permitted by use of the tests set out in BS8414 (and BR135) would also continue to be competent, but the design team would have the onus and expense of proving compliance.

The review does not mention whether their recommendations will require the retrofitting of existing building stock with compliant cladding.

Lessons from the past

The Scottish Parliament has already had to grapple with the complex realities of retrofitting in relation to fire suppression systems (sprinkler systems), and an analysis of the approach taken in that scenario may be useful in gaining an insight into the approach that may be taken on cladding. Following consultation on the introduction of sprinkler systems to high rise social housing, the retrofitting of existing building stock with fire suppression systems was removed from that proposed bill.  This was done so in recognition of the practicalities and costs of retrofitting despite the strong support from stakeholders in favour of a blanket approach.  A targeted approach to retrofitting existing buildings was suggested as an alternative.

What happens next?

Given that the costs and practical difficulties of retrofitting has already been recognised in relation to fire suppression systems , building owners will be left wondering whether a similar approach will be taken in relation to building cladding or whether the new legislation will make specific reference to the removal of existing cladding.

With the Grenfell public inquiry ongoing (an interim report  is expected in 2019), and with the Scottish Government accepting that this could lead to further modifications to Scottish standards and guidance, building owners in Scotland face uncertainty in relation to the extent of their obligations.

Tenants

If building owners are obliged to replace their cladding, we can expect them to try and recover the cost of doing so from their tenants, whether through a schedule of interim dilapidations or the service charge.

At that point, it will be important to understand if the tenants are in fact responsible for extraordinary repairs and latent defects.  While tenants have usually accepted liability for extraordinary repairs to the premises (although not always – https://www.scotcourts.gov.uk/search-judgments/judgment?id=a78486a6-8980-69d2-b500-ff0000d74aa7 ) liability for the cost of extraordinary repairs to the common parts incurred by the landlord are not often transferred to the tenants.