Supplementary advice for building owners of residential buildings

In November 2020, the Ministry of Housing, Communities & Local Government (MHCLG) published a Supplementary Note to its January 2020 advice. As a reminder, the January 2020 MHCLG Advice Note set out advice on the measures building owners should take to ensure that their buildings are safe, consolidating and expanding upon the Government's previous Advice Notes on cladding issues. Our commentary on this and other fire safety developments earlier this year can be found here.

The November 2020 Supplementary Note is a one page document which clarifies the application of the January 2020 Advice Note in relation to external wall systems.  In summary, it reiterates or further clarifies that:

• The Advice Note is not the law, nor is it statutory guidance and nor should it "have the effect of applying current legislation retrospectively".  It should also not be considered a guide for valuation or insurance purposes.

• The purpose behind the Advice Note is ensuring adequate levels of life safety (i.e. it is not related to property protection),

• It reiterates that it is the Building Regulations in force at the time of construction that are relevant, not current Regulation;

• "professional judgment [is] to be made regarding the safety of a building's external wall system". It is made expressly clear that even if "some combustible materials have been used [in an external wall system], replacement may not  necessarily be required", and further that this is a matter which will depend upon the fire safety risks and mitigations present in relation to the building as a whole, and is a question which should be for professional judgment on a building-by-building basis.   

• While the Government's expert panel's view is "ACM cladding and other metal composite cladding" with polyethylene cores should be removed from buildings of any height (regardless of insulation type), in relation to a building that has any other form of cladding, owners should only need to "consider the risk of external fire spread and the need for remediation" if:

  • that building is 18m or more in height from the top storey; or

  • there are residents who need significant special assistance to evacuate such as a care home or hospital; or

  • it does not have or provide for adequate risk mitigation and a suitably competent person has assessed it as presenting an unacceptable risk to the life safety of residents, people in the proximity of the building, and firefighters.

The above reflects a reminder for building owners that it is safety, not property protection, that is at issue. Apart from in relation to ACM panels, in the Government's view the presence of combustible materials on a building does not automatically mean that a building requires remediation or is non-compliant with Regulation.  Emphasis is also placed on building owners obtaining professional advice that considers fire safety holistically, rather than simply assessing the components of the external wall in isolation.  Further, the continued primary focus on buildings above 18m in height is also clear.