Out-Law News | 19 Dec 2022 | 9:52 am | 3 min. read
Construction companies in England and Wales that embrace ‘best in class’ testing and certification practices can get ahead of reforms on fire safety that are likely to follow the industry’s move to using modern methods of construction (MMC), a building safety expert has said.
Katherine Metcalfe of Pinsent Masons said designers and contractors can expect new construction product regulations to be introduced next year to impact MMC, where there is a growing emphasis on using materials which are supported by robust testing and certification. She said building safety regulator the Health and Safety Executive (HSE) is also likely to update technical rules and standards on fire safety contained within the building regulations in response to the use of new construction techniques.
Metcalfe was commenting after the National Fire Chiefs Council (NFCC) published a position paper on MMC (5-page / 155KB PDF) in which it called for the government to strengthen product testing requirements under the existing building safety regime and implement secondary legislation to expand on requirements under the Building Safety Act to reflect the specificities of MMC.
The NFCC said: “We are concerned that MMC buildings are being designed, approved and built under a regulatory system that has been described and accepted by government as ‘not fit for purpose’ even for traditional construction techniques. To ensure the industry is not creating legacy building safety issues, additional safeguards are needed to ensure there is not an influx of potentially unsafe MMC buildings being constructed while necessary regulatory reforms are in progress.”
The Building Safety Act published in May this year not only requires remediation of historical building defects but introduced a new, more stringent building safety regime for new buildings.
Not all the provisions have yet taken effect, and further regulations are due to follow, but the new regime imposes new duties on designers and contractors, requires a ‘golden thread’ information to be compiled as a means of evidencing building safety considerations, will eventually require developments to pass through three regulatory ‘gateways’ at the planning, construction and occupancy stage of projects, and establishes a new regime for ‘higher risk’ buildings – the definition of which will expand over time.
Whilst testing and certification processes are not unique to MMC and apply equally to both traditional methods as well as modern, the issue with many modern methods of construction is that there is simply a lack of historical data and a significant body of knowledge on performance compared to traditional methods of construction.
The lack of historical data and a body of knowledge about MMC is the key issue and it not only applies to fire safety in relation to fire and rescue services (FRS) and the safety of occupants as well as firefighters but also to insurable risks during construction and post completion. The insurance sector also lacks historical data on the performance of MMC. There is particular concern about the lack of a body of knowledge in relation to high rise buildings and where category one volumetric or cross-laminated timber (CLT) and glue-laminate timber (glulam) is used.
Metcalfe said: “The new building safety regime for higher risk buildings places an emphasis on understanding the design strategy to address fire and structural safety and the construction products used within the building. The Building Safety Act 2022 also establishes the Office for Product Safety & Standards as the new regulator for construction product safety, which will oversee new construction product regulations to be introduced next year.”
“Obtaining gateway clearance before construction and before occupation will require duty holders to demonstrate to HSE how they have satisfied themselves that MMC are safe. Those involved in design and construction need to plan ahead to make sure that they have appropriate test evidence and certification for the construction products which have been used, along with robust evidence of competent offsite construction and installation on site,” she said.
According to Metcalfe, designers and contractors that get testing and certification right will have an insurable building that holds its value and has the right golden thread of information to support the occupation phase of the building. Conversely, there will be significant consequences for getting it wrong, she said.
“The consequences could include defects claims with longer limitation periods, the need for investigation and retrospective testing, the need for additional mitigation measures to be applied, impact on property value and enforcement action by HSE in the most serious cases,” Metcalfe said.
Graham Robinson, an infrastructure and construction expert at Pinsent Masons, said: “The use of MMC and more advanced industrialised approaches to construction is growing rapidly and is expected to grow at over twice the rate of traditional methods of construction. There is a need for the development of a body of knowledge and test data to be available to a wide range of organisations, including FRS and insurers and those financing projects.”
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