Hotels left in limbo by new cladding regulations

Sue Ryan (pictured above left) and Philip Baker are construction partners, and Gemma Whittaker is a principal associate, all at Gowling WLG

Amendments to the 2010 Building Regulations are due to come into force on 1 December 2022 – but may leave landlords and tenants of operational hotels questioning whether they are doing enough to ensure fire safety in a post-Grenfell world.

“Responsible corporates should consider undertaking risk assessments in accordance with PAS 9980”

The Building (Amendment) Regulations 2018, introduced in December 2018, banned the use of combustible materials in and on the external walls of certain buildings and in specified attachments to the external walls.

The Building etc (Amendment) (England) Regulations 2022 (the “2022 Regulations”), which come into force on 1 December 2022, will extend the ban on combustible materials to hotels, hostels and boarding houses over 18 metres in height.

External walls of affected buildings will need to meet the same performance requirements (being A2-s1, d0 or better) as the higher-risk buildings already covered by the ban.

This will, however, only apply to new hotels and existing hotels where building work or refurbishment is taking place on external walls.

Applicable building works are those defined in 3(1) of the Building Regulations 2010, including erections and extensions and material alterations of existing buildings.

Recladding works are very likely to fall within this definition. In addition to this, there will be a transitional period in which the 2022

Regulations will not apply if a building notice, initial notice or full plans are deposited with a local authority before 1 December 2022, and the proposed building work is started within six months.

This should allow hotels a chance to complete works before they are obliged to adhere to the more stringent requirements although the deadline for submitting initial notices/full plans is rapidly approaching.

Controversially – and somewhat surprisingly to many in the industry following the evidence gathered as part of the government consultation carried out prior to their publication – the 2022 regulations do not retrospectively require remedial work to be carried out in buildings where no building works are already happening, leaving a significant number of existing hotels in limbo, and leaving landlords and tenants of operational hotel buildings wondering whether they need to take action.

Extended scope

The Secondary Legislation Scrutiny Committee has commented on the uncertainty that existing hotels will face, and has been vocal about its disappointment that no indication is provided of when the policy approach will make safe the existing stock of hotels.

This criticism may mean we could soon see the government legislate to bring existing hotels within the scope of the ban.

Affected landlords and tenants of existing hotels should take this into consideration when faced with the option of complying with the 2022 Regulations despite them not being mandatory at this time.

In the case of a hotel, where the landlord may own the building but the tenant operating the hotel holds a lease, which may or may not include the demise of the exterior, who does the responsibility fall on to ensure fire safety?

The Regulatory Reform (Fire Safety) Order 2005 imposes numerous obligations on the “responsible person” of a building, including the duty to take general fire precautions and to make a suitable and sufficient assessment of risks, to which relevant persons are exposed.

“Responsible person” is broadly defined as the person who has control of the premises as occupier or otherwise – meaning it could arguably be either the landlord or the tenant of a building being operated as a hotel.

The Health and Safety at Work Act 1974 also imposes a duty on each person with control of the premises to any extent, to take reasonable measures to ensure that the premises are safe and without risks to health.

This means that any person with contractual or tenancy-related obligations in relation to maintenance and repair, or any means of access to or egress from the premises, will be treated as persons who have control of those matters.

Breach of this overarching duty can be a criminal offence subject to an unlimited, uninsured fine.

Erring on the side of caution, both parties may benefit from finding an agreeable compromise splitting costs and responsibilities of external wall surveys and possible remediation works, in order to avoid the uncertainty of having a court decide where responsibility lies.

As an existing hotel not within the scope of the 2022 regulations, deciding whether or not to carry out works at the moment can arguably come down to a commercial decision to avoid reputational damage.

While not a legal point, there are potential negative reputational risks that may come with any refusal to cooperate with efforts to minimise the risk.

Although placed in an ambivalent position, in an attempt to avoid industry scrutiny, responsible corporates should consider undertaking risk assessments in accordance with PAS 9980 (which does not officially extend to hotels at present but may be amended to do so in light of the 2022 regulations), and remediating external walls in light of any fire risk concerns, given the risks to staff and guests in their hotels. 

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