Defects in building fire safety

The increase of workload for professionally qualified fire engineers acting as expert witnesses on civil cases has shifted from discernible to tangible in recent times.

This is great for our consulting peer group. It’s interesting and challenging work that is required to be carried out by persons that are appropriately professionally qualified and is usually invoiced on a time-charge basis. Fantastic.

Compared to working on building design and delivery, where we are competing with people without the professional qualifications who say they can do an equivalent job cheaper and where clients put cost above professional qualifications, it’s a much better business. Splendid. However, there is a ‘but’.

Rhubarb plant

For consulting engineers, fire safety expert witness work is a bit like the rhubarb plant in the corner of the garden: it’s ancillary to the main purpose of the garden, it doesn’t need to be lavished with attention to survive, and it gets on with producing something that we know is not going to be to everyone’s taste. And, year on year, it seems to produce a bit more.

According to the gardener in my family, it’s just the fertility of the soil that keeps it going.

The expert witness subject is one which is being regularly discussed between peers in our profession, not necessarily in relation to the technical detail of the breaches which form the cases, but rather the nature of the ground which is producing the increasing crop of cases for us to work on.

The discussions are tinged with frustration at the increasing frequency of problems with fire safety coming to light, which don’t reflect well on our profession and create the impression that the industry is not doing its job properly. Unfair? Perhaps. Or, maybe the fire safety industry has been guilty in respect of not doing more together sooner to arrest the slide in standards.

Omission of fire protection from the places where it should be, manufacturers’ claims of product performance not withstanding scrutiny, use of products outside their limits of application, and so on, are long-standing problems that haven’t got any better. However, what has changed is the frequency of ‘discovery’. This is not as the result of a greater incidence of fires, but rather seemingly as a result of other issues coming to light and being investigated first, such as failures in weather-tightness, acoustics, or structure.

Quite a lot of the calls that we now get as a precursor to appointment start with the words: ‘We’ve been looking at… and we’ve got concerns about what we’ve seen with the fire’.

Why is this? While we are used to seeing corners being cut in terms of fire safety, it looks like quality in other aspects of design and construction is also suffering more. Is it a feature of a drop in the level of assurance that is being applied during project delivery?

Today, a significant majority of new building projects receive assurance of building regulations compliance that is purchased from the building control body, and where the scope of the service providing this assurance is subject to contractual negotiation by the developer/contactor. When we inspect buildings delivered by such arrangements, is it any surprise that we often find that very little has been done correctly?

Providing assurance

Regulation 9 of the Approved Inspectors Regulations includes the statement: ‘Approved inspectors shall have no professional or financial interest in the work they supervise unless it is minor work.’ This is taken to mean that it is against the law for an approved inspector to be providing assurance to the client that the ‘works’ meet the requirements of building regulations when the approved inspector has either a professional or commercial interest in these works. The job of enforcing compliance with these regulations was gifted by the government to the Construction Industry Council (CIC).

So, then, why is it that we are currently faced with all of the following arrangements being operated in the field:

• Separate companies forming part of a group company providing building control and design on the same project, where the group companies have separate directors or the group companies have the same directors;

• Separate companies that are related by means of common ownership and staff (i.e. not registered as part of a group company structure) providing building control and design of the same project;

• Building control companies providing fire strategy design reports to be followed by the project team;

• Building control companies sub-contracting fire strategy design work to fire engineering consultancy practices; and

• Other building control companies stating
  that regulation 9 prevents them from acting
  as above.

This confusing picture is currently the subject of discussions between the fire engineering design sector, government, the CIC approved inspectors register, and the professional membership organisations representing the building control sector.

So, if the government and its appointed policeman left the door ajar, the construction industry has shoved it wide open. The prospect of being told what to do by the person who then ticks the box in terms of building regulations approval has been like manna from heaven for the project managers challenged by cost-conscious clients (external and internal) to reduce professional fees.

The result has been that some developers and main contractors now even request tenders for a one-stop-shop design and approval service with no regard to regulation 9 and scant regard to their own liabilities. These liabilities are clear in the Construction (Design and Management) Regulations in terms of ensuring that those carrying out the work are competent and that the provider of the building control function cannot act in the capacity of a designer (and will be unlikely to be appropriately professionally indemnified to do so).

As a consequence, building control bodies and/or ‘related’ companies have been actively commercially incentivised to engage in design work, such that they can realise the fees for this work and then ‘afford’ to carry out the ‘lighter touch’ building control commanded by the fees and scope negotiated for that function with the client.

The result is less fully independent scrutiny of designs on the table and construction in the field. The outcome is lower standards of project delivery and greater incidence of problems later on.

Tipping point

The view of the legal profession appears to be that the building control body, by means of not having a design responsibility, is ‘untouchable’, albeit not beyond admonishment when it comes to civil claims for building defects. Where the building control function has not been completely independent, this puts a different complexion on things, and perhaps it is appropriate for this viewpoint to be challenged in cases where it is clear (or perhaps unclear) that the building control body has had a conflict of interest in the work it has approved, either through having a relationship with the designer or by providing design or commissioning design itself. And, what about the additional claim on the developer and/or main contractor for not ensuring appropriate independence?

If things continue as they are, could the bubble burst? I think so. If standards continue to spiral downwards, we may reach a tipping point where the legal sector is faced with so many claims for litigation that the financial structures supporting the industry can no longer carry the load being placed upon them.

Insurers and investors should therefore be taking a closer look and doing their bit to raise the bar in terms of expectations on developers and contractors to ensure that the assurance being provided by the building control function is completely and transparently independent, and that designers and contractors understand and accept completely their liabilities in terms of design and construction delivery, and that these liabilities are not obviated by building control approval.

A simple statement in the employer’s requirements for the project referencing regulation 9 and stating what it means in the context of the project would be all that is needed. In terms of professional fees, it’ll cost a bit more to build the job, but there will be less picking up the pieces down the line.

By virtue of the human condition, oversight, mistakes, negligence, and occasional skulduggery will still have their place in the make-up of the compost which will keep the rhubarb growing in the corner of the garden, but at least the building control process will keep it under control rather than acting as a fertiliser. SJ

Mostyn Bullock is a director at Tenos

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