The practical issue with Grenfell Inquiry calls for higher risk buildings

James Mapley is a partner at Devonshires Solicitors

Contractors probably winced when they read the Grenfell Tower Inquiry’s damning assessment of Rydon’s performance as the main contractor on the building’s renovation before the 2017 fire. “Unsuccessful”, “inexperienced”, “satisfied” – these descriptions are at odds with the duties of a main contractor, who, as the Health and Safety Executive put it, “plans, manages, monitors and co-ordinates the health and safety aspects of a project during the construction phase where more than one contractor is, or is likely to be, involved”.

In order to address the deficiencies identified in relation to the main contractors, the Commission of Inquiry recommended:

• introducing a licensing scheme, operated by the Building Regulator, for main contractors wishing to undertake the construction or refurbishment of Higher Risk Buildings (HRB); and

• that a statutory requirement has been established that every application for building control approval for the construction or refurbishment of HRB (Gate Two) must be supported by a personal undertaking from the director or senior manager of the principal contractor to take all reasonable steps to ensure that when completed and handed over the building will be as safe as the Building Regulations require.

The basis of the committee’s recommendations is the “responsibility” and obligation of entities undertaking work for HRB to demonstrate and document their competences at every stage of the construction project life cycle.

While introducing a culture of accountability among contractors through statute and impartial verification seems, at first glance, to be a sensible solution, there is a glaring lack of information on how these recommendations will be implemented and what impact they may have on contractors.

“There is a gap between theoretical thinking in scientific papers and the practical reality of implementing recommendations”

The study found that the basis on which a building is defined as ‘riskier’, by reference only to its height, is unsatisfactory and arbitrary in nature, and recommended an urgent review. It seems likely that any changes to the definition will take into account (among other things) the nature of the building’s use and the presence of vulnerable people within it.

The likely changes will expand the group of contractors that must be licensed to carry out work for HRB, and will also require a director or senior manager of a principal contractor deemed to be “authorised” (details to be confirmed) to make a personal declaration that his company has made every effort to comply with building regulations.

With the uncertain backdrop of criminal proceedings against those “responsible” for the Grenfell disaster, it seems that the well-conceived recommendations could radically reduce the number of contractors able and willing to undertake work in the HRB. This comes at a time when the government has imposed “compulsory housing targets” to deliver 1.5 million new homes. One cannot be achieved without the other.

Contractors know that liability as a concept does not exist in a vacuum and cannot be negotiated independently of the time, quality and cost of a construction project. Few in the industry would disagree that the recommendations of the investigation are well-intended and provide a means of making HRBs safer. However, there is a gap between the theoretical thinking in the article and the practical reality of implementing the recommendations.

The question remains which contractors will be allowed to work on HRB once the government introduces the inevitable reforms.