Are builders ‘gaming the system’ to flout fire safety legislation?

6 December 2021

Last week Assistant Commissioner Fire Safety, Paul Jennings of the London Fire Brigade stated that developers are ‘gaming the system’, looking to reach only the minimum standards required for building safety and ‘bending the rules’.  AC Jennings explained that we are not seeing the cultural change within the built environment that we would expect, following the tragic events of the Grenfell Tower fire and the subsequent Hackitt review.

Examples have seen some developers deliberately design and build buildings below 18 metres or six floors as if they go above this, more advanced fire safety measures would have to be met under forthcoming legislation. AC Jennings explained that more than 60% of building consultations that come into the Brigade’s fire engineering team are ‘going back with concerns’, the Brigade dealing with thousands of consultations every year. AC Jennings described a situation where ‘we are not seeing people grasping what we would anticipate, people wanting to provide the gold standard for fire safety, rather than meet the minimum standards or look at ways to get around providing it.’ 

Stephen Greenhalgh, Minister for Building Safety and Fire said AC Jennings was right to call out this practice describing it as ‘shocking’

The new regime introduced by the draft Building Safety Bill looks to strengthen the regulatory regime for high-rise and other in-scope buildings, known as higher-risk buildings, in an effort to improve accountability, risk-management and assurance. The draft Bill suggests wholesale reform to the regulatory framework surrounding fire safety in residential buildings. Higher-risk buildings in the Bill are defined by their height and use;  the new regime applies to buildings that are at least 18 metres in height or have at least seven storeys and at least two residential units. The new Building Safety Regulator must provide such assistance and encouragement to relevant persons as it considers appropriate with a view to facilitating their securing the safety of people in or about higher-risk buildings in relation to building safety risks. The draft Bill also imposes duties on Accountable persons and building safety managers in occupied higher-risk buildings. In addition, measures such as a ban on the use of all combustible materials on external walls apply to new residential buildings over 18 metres.  Buildings under 18 metres are not currently required to have External Wall Application (EWS1) forms, the document designed to verify whether a building is safe or not.  

Those accountable under the new regime will be required to take all reasonable steps to reduce the risk of fire spread or structural failure.  The Government have focused on this threshold of 18 metres in an attempt to prioritise based on risk.

Those seeking to avoid the new regime by building just short of 18 metres should be aware that it has been said that the regime would ‘in due course, extend to include other premises, based on emerging risk evidence.’  The draft bill states that ‘it is important to ensure that the Government can respond quickly in the future, where necessary, to broaden the definition of ‘higher-risk buildings’ in light of either critical new information emerging or experience of operating the new regime.’ The Bill provides that it would be open to the Secretary of State in the future, to consult with the Building Safety Regulator and make regulations to define or amend the definition of ‘higher-risk buildings’ so as to bring within scope residential buildings regardless of height.  In addition, the Fire Safety Act, which will come into force in early 2022 applies to buildings containing two or more sets of domestic premises, of any height and requires the Responsible Person to fully consider and mitigate the risks of any external wall systems and fire doors in discharging their duties under the Fire Safety Order.

It is therefore important that those responsible for building and fire safety take matters seriously, regardless of the height of the building.  This should also help to bring about the cultural shift needed across the sector. 


If you have any questions or concerns about the content covered in this blog, please contact a member of the Regulatory team.



Hannah Eales is a barrister in the Regulatory team.  She is an experienced advocate and a regulatory, health & safety and criminal law specialist.  Hannah has a particular expertise in fire safety law having prosecuted on behalf of fire and rescue authorities nationally as well as representing individuals and corporates facing prosecution for breaches of the Fire Safety Order in the criminal courts.  Hannah is experienced in advising property owners and managers on compliance with fire safety legislation and regulations.  She has a broad practice, also acting both for regulatory bodies and representing those who appear before them, as well as prosecuting and defending in the criminal courts.  She regularly advises on all aspects of criminal, health & safety and regulatory law.


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