James Mapley is an associate at Devonshires Solicitors
Contractors likely winced upon reading the Grenfell Tower Inquiry’s damming assessment of Rydon’s performance as the primary contractor on the refurbishment of the building prior to the blaze that engulfed it in 2017. ‘Failed’, ‘inexperienced’, ‘complacent’ – these descriptions are diametrically opposed to its duties as a principal contractor to, in the Health and Safety Executive’s words, “plan, manage, monitor and coordinate health and safety during the construction phase of a project involving, or likely to involve, more than one contractor”.
To remedy the failings identified as pertaining to principal contractors, the inquiry recommended:
- the introduction of a licensing scheme, operated by the construction regulator, for principal contractors that wish to undertake the construction or refurbishment of higher-risk buildings (HRBs); and
- that it is made a statutory requirement that any application for building-control approval for the construction or refurbishment of an HRB (gateway two) is supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that, on completion and handover, the building is as safe as the building regulations require.
The central pillar underlying the inquiry’s recommendations is ‘responsibility’ and compelling those who undertake works to HRBs to demonstrate and evidence their competence at every stage of the lifecycle of a construction project.
While embedding a culture of responsibility with contractors by statute and impartial vetting seems, conceptually, like a sound solution, there is a glaring paucity of information on how the recommendations would be implemented and how they might impact on contractors.
“There’s a chasm between the theoretical paper thinking and the practical reality of implementing the recommendations”
The inquiry found that the basis on which a building is defined as ‘higher risk’, by reference only to its height, is unsatisfactory and arbitrary in nature, and has recommended an urgent review. It seems that any changes to the definition are likely to account for (among other things) the nature of a building’s use and the presence of vulnerable people in the building.
The likely changes will expand the pool of contractors that must be licensed to undertake works to HRBs, and require the director or senior manager of the principal contractor deemed ‘eligible’ (details to be confirmed) to provide a personal undertaking that their firm took all reasonable care to comply with the building regulations.
Against the uncertain backdrop of criminal prosecutions commencing for those ‘responsible’ for the Grenfell tragedy, it seems the well-intended recommendations may radically reduce the number of contractors that are able and willing to undertake works on HRBs. This comes at a time when the government has imposed ‘mandatory housing targets’ to deliver 1.5 million new homes. One cannot be achieved without the other.
Contractors know responsibility as a concept does not operate in a vacuum and cannot be negotiated independently of time, quality and cost on a construction project. Few in the industry would disagree that the inquiry’s recommendations are well-intended and provide measures that might make HRBs safer. However, there remains a chasm between the theoretical paper thinking and the practical reality of implementing the recommendations.
It remains to be seen which contractors will be left standing to work on HRBs once the government brings in its inevitable reforms.
