Written evidence submitted by the Mineral Products Association [BSB 082]
A Response by the MPA
The Mineral Products Association (MPA) is the trade association for the aggregates, asphalt, cement, concrete, dimension stone, lime, mortar and silica sand industries. MPA membership is made up of the vast majority of independent SME quarrying companies throughout the UK, as well as the 9 major international and global companies. It covers 100% of UK cement production, 90% of GB aggregates production, 95% of asphalt and over 70% of ready-mixed concrete and precast concrete production. Each year the industry supplies £20 billion worth of materials and services to the economy and is the largest supplier to the construction industry.
The MPA fully support the need for a new regulatory system and creation of a new Building Safety Regulator with robust enforcement powers. We have reviewed the Draft Building Safety Bill and our response to the bullet points highlighted by the committee scrutinizing the bill is given below. We have limited our response to those items where we feel we have expertise and are therefore able to offer insight to the committee.
Response
The Bill presents primary legislation the appears broadly compatible with the Governments policy intentions. However, much of the important detail will be covered by secondary legislation and statutory guidance. It is only when this further detail is provided, that it will be possible to determine whether the intentions have been achieved.
Scope of Buildings Covered
It is accepted that the final decision of buildings within scope will be made in later documentation however the supporting documentation to the bill suggests that the likely starting position will be residential buildings of above 18m or 6 storeys. This is further supported by the current Home Office, Fire Safety, Government consultation (ends 12 October 2020) that suggests the same height limit, of 18m or 6 storeys, to be “aligned to the proposed scope of the Building Safety Bill”.
We believe that a more holistic approach should be taken as there are many other factors that contribute to the safety risks and these vary across purpose groups or in different buildings within the same purpose group. For example, the proposed height limit is the same for a block of flats as it is for care homes. Work carried out by the BRE(1), published in 2015, estimated "deaths per million unit years" for various building types (Table B6). The highest risk was for blocks of flats, but the second highest was for care homes. Figure C2 of the report showed that deaths increased significantly for buildings where the fire started above the 9th floor. However, very few care homes are anywhere near this height which would indicate that they form a much larger percentage of the deaths for the lower rise buildings. Therefore, for this type of building the risks to fire safety are high at lower heights. This was supported by appendix A of the MHCLG consultation “Building a Safer Future” that showed Care homes, hospitals and sheltered housing have a greater rate of fire than other buildings (other than prisons) in buildings under 18m.
It seems logical that as evacuation of a care home is likely to take longer than that of a building with able residents, the risks are greater. Similar arguments could be developed for hospitals and sheltered housing.
No differential is made relating to the number of escape routes nor occupancy numbers of the building. A 20m high block of flats with multiple escape routes capable of instantaneous evacuation would be a lower risk than a 17m high block of flats with a single staircase reliant on phased evacuation, this should be acknowledged in the final determination of buildings within scope.
In addition to Fire Safety, the Draft Bill also covers Structural Safety. Whilst the probability of fire is greater than structural failure, the consequence of structural failure of a building with many people in it, whether residential, commercial, or other, is much greater. This is recognised in Approved Document A(2) by assigning structures a “Consequence Class” of which Consequence Class 3 represents buildings where failure would have the greatest consequence. In addition to the multi occupancy buildings currently proposed, any other building that is Consequence Class 3 in accordance with Approved Document A should also fall within the scope of the new regulator.
Whilst in recent times significant fatalities due to structural failure have been avoided in the UK there have been near misses as in the Edinburgh Schools wall failures(3), similarly in Australia a high rise residential building suffered significant structural distress and required evacuation. The report on this failure(4) and other reports from Australia(5) highlight very similar problems to those raised by Dame Judith Hackitt and confirm that the shortcomings impact structural as well as fire safety.
There are also buildings that whilst not thought to be high risk at construction can become higher risk due to systematic issues with their method of construction, examples of this include schools and hospitals and other public buildings built using Reinforced Autoclaved Aerated Concrete(6) and Engineered Timber buildings(7). It is also reasonable to assume that the rapid drive for modern methods of construction will lead to similar legacy issues for some systems. By adding affected buildings to the responsibility of the Building Safety Regulator consistent and appropriate safety cases will need to be developed that will demonstrate how these additional risks are being managed. The Regulator in turn must be able to enforce additional works where the safety case is deemed inadequate regardless of the regulations at the time of construction.
Therefore, whilst we support the 18m limit there should be opportunity to direct other projects where particular fire safety risks exist to follow the new regulations. In addition, any structure classified as Consequence Class 3 to Approved Document A or with known structural deficiencies, should also follow the proposed regulatory process.
References.
(1) BD 2887 - Compartment sizes, resistance to fire and fire safety project, Work stream 5 - Sprinkler provisions. BRE February 2015
(2) Approved Document A – Structure, 2013
(3) Report of the Independent Inquiry into the Construction of Edinburgh Schools, 2017
(4) Opal Tower Investigation Final Report: Unisearch, 2019
(5) Building Confidence – Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia, Shergold and Weir 2018
(6) SCOSS, Failure of Reinforced Aerated Concrete Planks, May 2019
(7) Deeny, Hadden, Lane, Lawrence: Fire safety design in modern timber buildings, The Structural Engineer, January 2018
Adjacent Buildings Affecting Higher Risk Residential Buildings
The scope of the Bill does not appear to give the regulator any powers to scrutinise other buildings that, whilst not Higher Risk Residential Buildings themselves, would affect the safety of adjacent HRRB. We believe that the regulator should be given the powers to scrutinise planning applications for developments within the near vicinity of buildings within scope of the new regulations. This is because these buildings could affect FRS access to the buildings in scope and could potentially cause a fire risk to the building in scope. These risks exist both in construction and in occupation. Construction represents a particular risk and we note that there have been a number of examples of fires in timber framed buildings under construction that have affected the neighbouring buildings. The HSE guidance on Fire Safety in Construction(1) specifically notes that “fire spread from a construction site might endanger the lives of people in adjacent properties”. We also note that a significant adjacent development may impact on the water supplies to a building in scope.
(1) Fire Safety in Construction, HSG168, HSE 2010
Property Protection (including neighbouring buildings)
It is noted that the scope of the Bill is concerned only with the safety of people in and around buildings. In the Approved Document B call for evidence it was asked whether property protection should be included. The summary of responses(1) is quoted below:
“Inclusion of Property Protection
A large majority supported the principle of this inclusion across the board. This was on the following grounds:
Within the range of these responses there was acknowledgement that an initial prime focus might be for housing and public buildings.
A very small number of respondents were against the concept. This was on the grounds that it is a matter that adequately sits within the power of building clients and their insurers. On this aspect it is noteworthy that respondents from the insurance industry favoured inclusion.
Amongst the support, some concerns were expressed regarding a possible difficulty in establishing and targeting appropriate standards to achieve the long-term benefit, that there might be a perceived over reliance on sprinklers and that certain building materials and techniques might become disadvantaged.”
As can be seen from the summary above the only argument for not including property protection is that it is matter for the owner and their insurer. However, in most multi occupancy buildings the resident has no control over the property protection decisions made at the design stage. In addition, there are indirect life safety risks including having to rehouse multiple occupants in emergency housing, the mental trauma of losing possession and safety risk associated with the toxicity of burning property.
For these reasons we believe that the regulator should also have some remit to ensure appropriate measures are in place to minimise property loss. Ideally this should be explicitly, however if not it should be directly acknowledged that indirect safety risks to people, as noted above, are within the remit of the regulator.
Similarly, the Bill should also ensure that the buildings within its scope offer sufficient property protection to adjacent properties. Again, this is reasonable as these adjacent buildings have no control over the protection offered by their Neighbour. The danger these types of building pose to their neighbours was highlighted by the temporary closure of the London Underground line adjacent to the Grenfell tower over fears for its stability following the fire.
(1) Technical Review of Approved Document B of the Building Regulations, Analysis of response to the Call for Evidence, MHCLG, September 2019
Regulators Duty to share Best Practice
The regulators scope should include the dissemination of best practice. It is noted that there is a proposal in clause 109 for the regulator to produce a developers’ code of practice but there does not appear to be a similar requirement for those producing safety cases for existing buildings. Given the various issues around the risks associated with cladding and the current concerns around the safety of Large Panel System high rise residential blocks, sharing of best practice with regards to the safety cases made for these buildings is essential. Currently the approaches being made to justify the safety of Large Panel Systems appear to vary significantly from some that seem completely inadequate to others that seem unnecessarily extensive. Sharing of best practice should form an essential duty of the regulator. As many of these buildings remain under public ownership excessive investigations and over cautious approaches lead to a waste of public money, whilst inadequate investigations may not address the safety risk.
Confidential Reporting of Safety Information
Clause 8 in the Bill states:
8 Duty to establish system for giving of building safety information
The regulator must—
(a) establish and operate a system to facilitate the voluntary giving of
information about building safety to the regulator, or
(b) make arrangements for a person to establish and operate such a system.
Paragraph 168 of the Explanatory Notes on the Bill states that it is the intention for Clause 8 to be met through the expansion of CROSS into fire safety (and presumably structural safety) which we support.
We are concerned that part (a) of the clause gives consideration to allowing the regulator to operate its own system. This is contrary to the voluntary safety reporting established and operated in the aviation industry.
Voluntary safety reporting in the aviation industry is well established internationally, is proven and has been very successful. The fundamental principle for this success is that all of the voluntary safety reporting systems across the globe are operated independently of the regulator. Voluntary safety reporting for the UK building industry must follow this same principle if it is to be successful and meet the objectives of the policy.
Structural Safety has operated CROSS (Confidential Reporting on Structural Safety), a voluntary safety reporting system for buildings, since 2005. As a result of the Hackitt recommendation 1.4c, MHCLG are currently funding a project to expand CROSS to cover fire safety issues. This project will be complete in March 2021, and the expanded CROSS will meet the policy objective of Clause 8 in the Bill.
CROSS has been modelled on voluntary safety reporting in the aviation industry, and importantly, CROSS is operated independently of the regulators in the building industry. Reporters’ personal information, along with any identifiable details in reports, such as the names of a project, asset, product, individual or organisation, are confidential to CROSS and are not shared with anyone.
Based on the above evidence, it is our view that Clause 8 should be modified to state that the regulator should appoint an independent body to operate the voluntary safety reporting scheme for buildings.
The testing regime proposed by the Bill is currently too reliant on EU harmonised standards. Whilst the Bill gives the Secretary of State the responsibility to decide which standards are designated standards (Schedule 8) the explanatory notes discuss the existing EU Construction Products Regime and implies that where EU harmonised standards or European Technical Assessments apply these will be used.
It is recognised that the current EU CPR is not functioning as intended as highlighted by a recent consultation “Future Options for the Review of the Construction Products Regulations (CPR)” (Closed 19th August 2020).
The failures of the current system are having an impact on the quality and indeed safety of EU Harmonised Standards. Historically Standards have provided a method to ease the trading of products, for these reasons industry has generally supported their development. Under the CPR the standards become a legal document, and this has the adverse effect that many clauses are deemed inappropriate. This has the following knock on effects:
1) There is a conflict between the European Commission (EC), CEN and the technical committees that draft the standards. The EC legal assessment of drafts has highlighted many legal aspects of current draft standards that are not consistent with the legal requirements. However, it is often these aspects that the industry needs to ensure safe and easy specification and supply of products. Thus, a way of keeping the important aspects of current standards, whilst meeting the legal requirements, needs to be found. A number of revised standards have been put on hold pending solution of this this issue. For example, the are 20 draft precast concrete product standards that are prepared but pending resolution of this conflict, some of these include safety improvements.
2) The new standards are often required to remove threshold values and classes. Instead extensive declarations of performance are proposed. This requires the purchaser (and the specifier) to be an expert in the product to understand if it is appropriate for use. Thus, if these revised EU Standards are published national “specifications” will be required to ensure that the declared performance is appropriate for the intended use and result in a product with the appropriate safety.
3) There is a danger that the new standards will be far less attractive to Industry and their experts who generally give their time free of charge. Without this input the Harmonised Standards will become out of date and run the risk of not addressing the relevant safety aspects of new products.
The Explanatory notes to the Bill appear to assume the European Assessment Documents are of a similar level of “quality” as a CEN Harmonised Standard. This is not necessarily the case, and whilst there are some very good EAD’s there are others that are largely produced for an individual company and their product and are therefore less independent and seen as a short cut to CE marking. EADs are produced by EOTA, it is our understanding that as of the end of the year the UK will no longer be a member of EOTA and therefore no longer able to influence the development of EADs. There are already EAD’s which conflict with British Standards covering the same products. There are EAD’s that conflict with European Design codes. There are EAD’s that do not recognise the individual nations to define their appropriate level of safety through Nationally Determined Parameters.
The Bill therefore should ensure that the regulator is set up with appropriate resources to review current European hEN’s and EAD’s for adequacy and to commission alternative where required if it is to command the full confidence of the sector.
We note that neither the Bill nor the supporting documentation makes reference to third party certification of safety critical products. Third party certification provides one mechanism to ensure consistent levels of checking and quality across various suppliers. It also provides a mechanism for data gathering such that changes can be made in response to changing products or customer requirements. We believe that third party certification should be a central part of the product testing regime.
The Bill appears to give the regulator the opportunity to address many issues around building safety. However, to achieve this it will need to be supported by appropriate secondary legislation and Statutory Guidance. We consider that the following items should be addressed by such further documentation:
The development of a more risk-based approach to buildings within scope and inclusion of those buildings classified as Structural Consequence Class 3 in accordance with approved Document A.
Further consideration of the safety of Neighbours and the Fire and Rescue Services. We believe that the current statutory guidance interpretation of “people around buildings” is too narrow.
Limitation of the use of combustible structure within these higher risk buildings and explicit need to consider total burn out where the protection of neighbours relies on it. For certain purpose groups this should also be considered for property protection.
A requirement for the regulator to disseminate best practice and improve consistency between safety cases on existing buildings, particularly with regards to the treatment of cladding and older Large Panel Structures.
Recognition of the potential safety issues arising from the implementation of the CPR via European harmonised standards and European Assessment Documents. The Regulator will need sufficient expertise to assess these risks and to produce alternative product safety documentation as required.
Overall, we believe that to address all the relevant building safety issues the scope of the regulator, and therefore the resource required, will need to be significantly larger than indicated in the supporting documentation to the bill.
Summary
We believe that many of our comments could be covered by Secondary Legislation and Statutory Guidance although they are not reflected in the current supporting documentation to the Bill. However, a number of the comments related to the scope of the regulations, would benefit from inclusion in the primary legislation. These include clarity on the requirements for property protection, particularly related to the indirect effects on safety, an extension of scope for the regulator such that they also cover other buildings that could affect the safety of higher risk buildings, clarification of the need for independence from the regulator of any independent reporting system and acknowledgement of the benefits of third party testing of products.