R British Blind and Shutter Association v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 21 November 2019 |
| Neutral Citation | [2019] EWHC 3162 (Admin) |
| Date | 21 November 2019 |
| Docket Number | Case No: CO/1126/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/1126/2019
Andrew Singer QC and Sarah Reid (instructed by Chadwick Lawrence LLP) for the Claimant
David Manknell (instructed by Government Legal Department) for the Defendant
Hearing date: 23 October 2019
Approved Judgment
Introduction
The British Blind and Shutter Association (“the Association”) seeks to challenge the lawfulness of regulation 2(2) of the Building (Amendment) Regulations 2018 (2018/1230) (“the 2018 Regulations”), insofar as it introduced regulation 2(6)(b)(ii) of the Building Regulations 2010 (2010 No.2214) (“the 2010 Regulations”).
The Association's concern is that the regulation has the effect of banning the use of external shutters, awnings and blinds on relevant buildings with a storey over 18m high, if the materials used do not meet the standard required by reg.7(2). The Association's uncontested evidence is that it is not currently possible to manufacture fabrics for various products sold by members of the Association (such as awnings, canopies and roller blinds) which meet the required standard. They contend the decision to make the challenged regulation was unlawful.
Permission to bring this judicial review claim was granted on the papers by Martin Spencer J on 23 May 2019.
The issues are:
i) Whether the Secretary of State failed, in breach of Section 14 of the Building Act 1984, to consult the Association.
ii) Whether the consultation which was undertaken was inadequate.
iii) Whether the Secretary of State's decision to make the relevant regulation was unlawful by reason of:
a) Failure to take into account material considerations; or
b) Irrationality.
iv) Whether the Court should exercise its discretion and quash the relevant provision of the Regulations.
The facts
The Defendant set up the “Building Safety Programme” following the Grenfell Tower fire, with the aim of ensuring that such a tragedy does not occur again. Since the fire, a number of advice notes have been issued by the Defendant to building owners, following discussions with the Independent Expert Advisory Panel appointed to advise the Department on building safety matters. The advice was that where cladding systems posed a risk to safety, when judged against the current building regulation requirements, they should be removed.
Following the appointment of the Rt Hon James Brokenshire MP as Secretary of State in April 2018, in early discussions with officials and the Housing Minister at the time (Dominic Raab MP), concern was expressed by the Secretary of State that not enough was being done by building owners — particularly in the private sector — to ensure that buildings were being made safe, despite the advice notes that had been issued; and that a risk remained that the requirements set by the building regulations could be misinterpreted and thereby result in the installation of unsafe materials on the external walls of buildings. The Secretary of State considered that, to reduce potential fire safety risks, further action should be taken to ensure that unsafe cladding could not be used on new buildings in future.
The Independent Review of Building Regulations and Fire Safety (“the Hackitt report”) was published in May 2018. The Hackitt report emphasised that the problem was with enforcement of existing regulations. This report identified the use of combustible external cladding (which caused the fire to spread across the external surfaces of the building) as an issue relating to the effectiveness and enforcement of current building and fire safety regulations. It did not call for further regulation, advising that “ prescriptive regulation and guidance were not helpful in designing and building complex buildings, especially in an environment where building technology and practices continue to evolve, and will prevent those undertaking building work from taking responsibility for their actions”.
Nevertheless, the Secretary of State was aware that Dame Judith Hackitt had indicated, in a letter to the Chair of the Communities and Local Government Select Committee on 5 March 2018, her view that, for the future, the lower risk option was to use products that are non-combustible or of limited combustibility.
On 17 May 2018, the day the Hackitt report was published, the Secretary of State announced in Parliament that “ the Government will consult on banning the use of combustible materials in cladding systems on high-rise residential buildings”. He stated,
“Let me be clear: the cladding believed to be on Grenfell Tower was unlawful under existing building regulations. It should not have been used. I will ensure that there is no room for doubt over what materials can be used safely in cladding of high-rise residential buildings.”
Mr Robert Ledsome (the Deputy Director responsible for leading the Technical Policy Division in the Building Safety Programme) has given evidence that the announcement was picked up widely by the press, including the BBC and a number of national newspapers. The media reports he has exhibited bear the headlines: “ Grenfell Tower: Government will consult on cladding ban”; “ ‘We'll consult’: Government won't commit to banning flammable cladding after fury over Grenfell review”; and “ Grenfell-style cladding could be banned on tower blocks, government says”. Such headlines accord with the evidence of the Company Secretary of the Association, Mr Andrew Chalk, that prior to the consultation “ press and industry comment was predominantly concerned with the combustibility of cladding on the external walls of high-rise residential buildings”.
On 11 June 2018, the Secretary of State made a further statement in Parliament:
“… I recently welcomed Dame Judith Hackitt's final, comprehensive report following her independent review of building regulations and fire safety. In response, I committed to bringing forward legislation to reform the system of fire safety and give residents a stronger voice. Having listened carefully to concerns, the Government intend to ban the use of combustible materials on the external walls of high-rise residential buildings, subject to consultation. We will publish the consultation next week.”
On 18 June 2018, the Defendant published a press release with the headline “ James Brokenshire publishes consultation on banning combustible cladding”. The press release stated, “ The Housing Secretary has announced a consultation on banning the use of combustible materials on the external walls of high-rise residential buildings”. This was accompanied by a link to a consultation paper entitled, “ Banning the use of combustible materials in the external walls of high-rise residential buildings” (“the Consultation Paper”).
In a written ministerial statement dated 19 July 2018 the Secretary of State referred to this consultation in these terms:
“I am clear we will not hesitate to go further than the Hackitt recommendations where we deem it necessary. Not only have we launched a consultation on proposals to restrict or ban the use of so-called desk top studies (assessments in lieu of tests) for cladding materials, as recommended by Hackitt, but we have also launched a consultation on proposals to ban the use of combustible materials in the exterior wall construction of high-rise buildings.”
Mr Chalk has given evidence that the Association was founded in 1919 and it is “ the only trade association for blinds, awnings, shutters and associated services such as motors, controls, software and blind cleaning in the United Kingdom”. Mr Chalk states:
“The BBSA represents approximately 400 companies involved in the manufacture, sale and installation of all types of blinds, awnings and shutters. The BBSA's members employ around 5,000 individuals and I estimate the BBSA is responsible for over 50% of all blinds and shutters installed in the United Kingdom. The shading industry in the UK has an annual turnover of around £800m and directly employs approximately 16,000 individuals.”
Mr Chalk's role included working “ on all government consultations of relevance” to the Association's members and the wider industry. At the time, Mr Chalk did not see the Secretary of State's statements of 27 May 2018 or 11 June 2018 and he was not aware of the Department's intention to consult. Nor did he see the press release of 18 June 2018.
However, Mr Chalk has explained that he monitors the publication of consultations, making a regular weekly check for those of relevance to the Association. He states:
“I review the title of the consultation and, if there is a suggestion that it might have some impact upon BBSA members, then review the consultation paper. Government consultations are published as a list on the Government website. Dependent on what else I am doing, I usually review the list of consultations on a Monday. Therefore, it is likely that I first saw the consultation title, “Banning the use of combustible materials in the external walls of high-rise residential buildings” during the period immediately following its publication on, I believe, 18 June 2018. I saw the consultation title and that influenced me not to read the Consultation Paper because I did not consider it affected our members. Our members' products have never been considered to be “combustible materials in the external walls of high-rise residential buildings”.
The consultation period ran for eight weeks, closing on 14 August 2018. The Government received 460 responses to the Consultation Paper. The Association did...
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