HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

In addition to his evidence in relation to the cause of the water ingress, Mr Ferguson also gave evidence in relation to fire safety. There was some attempt by the defendants to challenge Mr Ferguson’s expertise in relation to these issues. It was, in fact, the case that at the case management stage of these proceedings, there was discussion of whether there ought to be permission to call a discrete fire expert. The claimants sought permission to do so which was opposed by the defendants. The court was satisfied that that was not necessary and that an architect could give such evidence. Mr Ferguson was clear in his evidence that fire safety should be part of the expertise of all architects, that he worked for Hawkins who are well known specialists in the field and that, for the past three years, his work had predominantly concerned defects relating to fire safety. In my judgment, he patently had the relevant expertise.

Despite my having addressed this issue in dealing with the application to amend, Mr Emmett persisted in his closing submissions in stating that no fire expert had been called by the claimants (which was wrong) and that the experts called were not qualified to comment on the Fire Strategy considered by the Approved Inspector. No Fire Strategy was produced or put to Mr Ferguson and the submission that he would not have been qualified to comment was also wrong. To the extent that it matters, it was also wrong to submit that Mr Ferguson was not aware that there were sprinklers in the new flats – he was asked about it and he said he was aware.

In his report, Mr Ferguson set out the site investigation which he had undertaken on 8 June 2023 when he had examined the remedial works thus far undertaken and the compartmentation between the old flats and the new rooftop flats.

He set out in detail the construction of the new ceilings to the (old) top floor flats (nos. 11 to 14). The new ceilings consisted of two layers of 12.5mm thick Knauf FirePanel plasterboard beneath 100mm mineral wool insulation. Above each ceiling was a void which had been used to distribute services to and from the flats. He observed that there was no proprietary fire-stopping such as fire collars or other methods of protection where pipes penetrated the ceiling. Within the void above every flat, there were electrical cables which penetrated the ceiling with no sealant and in several locations live electrical cables. Above all except flat 14, there was builders’ waste in the void. In flat 13, a new boiler had been installed – the flues penetrated the ceiling without any proprietary fire stopping or other protection and terminated within the void.

Mr Ferguson described the crash deck formed of timber joists spanning between the elements of the new steel structure which were intended to support the modular units. He noted that it did not appear to have been protected with intumescent paint. Some joists were unprotected against fire and there were gaps through which smoke could pass. There was a void above the crash deck in which there was builders’ waste. He concluded:

“I could not see any evidence that the compartment walls of the modular units above hadbeen extended downinto the void to subdivide the cavity, or any other form of fire-resistant cavity barrier had been installed.”

Mr Ferguson could see no evidence of fire-stopping between the compartment walls and the external walls. In flat no. 11, the blockwork wall had been reduced in height and no fire-stopping was in place above. In each flat he saw cables and other services passing through the separating walls of the flats without fire-stopping.

As Mr Ferguson set out in his report, the relevant Building Regulation is B3 which provides:

“(1)

The building shall be designed and constructed so that, in the event of fire, its stability will be maintained for a reasonable period.

….

(3)

Where reasonably necessary to inhibit the spread of fire within the building, measures shall be taken, to an extent appropriate to the size and intended use of the building, comprising either or both of the following –

(a)

sub-division of the building with fire-resisting construction;

(b)

installation of suitable automatic fire suppression systems.

(4)

The building shall be designed and constructed so that the unseen spread of fire and smoke within concealed spaces in its structure and fabric is inhibited.

The relevant guidance as to how those requirements could be met in a block of flats was provided by Approved Document B1 (AD-B1), 2019 edition with 2020 amendments.

His opinions were as follows:

It is convenient to quote Mr Ferguson’s conclusions:

“4.1.15

In summary, if the compartment walls of the third-floor flats were continued up to the underside of a fire resisting ceiling, the void above the ceiling would only need to be divided with cavity barriers in line with the compartment walls. However, as there was no adequate compartment ceiling, to comply with the Building Regulations, the walls should be carried up to the underside of the roof level. They are not.

4.1.16

Therefore, in my opinion, the compartmentation between flats does not met functional requirement B(3) of the Building Regulations.

4.1.17

Furthermore, as the steel sub-frame in the ceiling void had not been painted with intumescent paint, it is likely that [Click St Andrews] relied on the lower ceiling to protect the structure against fire. As the lower ceiling will not adequately resist fire, the structure is not adequately protected.

4.1.18

Therefore, in my opinion, the structural protection to the flats does not meet functional requirement B3(1) of the Building Regulations.”

There was little or no challenge to Mr Ferguson’s evidence on fire safety issues.

It was suggested to him that two layers of fire rated plasterboard could have been adequate protection for the void. The best he could say was that it was possible but there needed to be a tested solution and there were so many holes in the plasterboard that he did not think it could provide adequate protection. There was, of course, no positive evidence that it did. It was also suggested to him that the compartmentation in the void could be completed after the boiler flues were installed and the electrical works completed in the void. Mr Ferguson’s response was that to do that you would need to remove the ceilings and he had never known a contractor do this work in that sequence. Neither of these matters seem to me to have cast any doubt on Mr Ferguson’s views about fire safety.

The principal matter put to Mr Ferguson was that if the Approved Inspector had issued a final certificate, as Assent Building Control did on 10 June 2022, he ought to be satisfied that the Building Regulations had been complied with. As he said, he would expect a proper assessment to be made but the certificate itself did not render the building safe. In this case, he was surprised that the certificate had been issued given the instances in which he could see that the fire protection was not there and where there were so many things wrong. In his view, the certificate should not have been issued and the building was not safe. In any case, the certificate is nor more than evidence of compliance – it is not conclusive and says so on its face.

In light of Mr Ferguson’s evidence, I am satisfied that in carrying out the works, Click St Andrews was in breach of clauses 5.2(a), (d) and (e) of the FPA in each of the respects set out above and that these give rise to a relevant liability for the purposes of section 130(3)(b) of the Building Safety Act 2022. I am also satisfied that these matters amount to a breach of, or placed Click St Andrews in breach of, the covenant of quiet enjoyment.