The error itself seems to stem from a misreading of Approved Document B (Volume 2), where Section 12.7 on “Insulation Materials/Products” requires of a building with a storey 18 metres or more above ground level, that “any insulation product, filler material (not including gaskets, sealants and similar) etc. used in external wall construction should be of limited combustibility”.
Where the expert panel and the Department of Communities are going wrong is in interpreting the core materials in Reynobond PE (and similar products) as insulating material.
In fact, as one of several Reynobond brochures indicate, Reynobond PE is a laminated product. The polyethylene core “adds strength and rigidity to the coil-coated aluminium panels”, thus maximising “its flexibility and formability, while maintaining a light weight for easy installation”.
While the polyethylene has low thermal transmission characteristics, this is entirely incidental to the functioning of this product, which is to add “strength and rigidity”. There is no reference to insulation and no claims are made for the product in this respect – which is hardly surprising as the core thickness is only 2mm – compared with the 150mm of Celotex which has been found to be “more inflammable than the cladding”.
Clearly, if Reynobond PE is neither marketed nor used as an insulation material or product, Section 12.7 cannot apply. As the UK Approved Document otherwise permits surface materials to be used if they conform with the Class 0 National Standard – equivalent to class B of EN 13510 – then by requiring additional testing for “combustibility”, the UK government is potentially in breach of EU law.
What is clearly confusing people (and has been extremely difficult to work out) is explained in a COM(2016) 445 final, a report published in July last year, on the functioning of the Construction Products Regulation.
Unlike the more usual harmonised standards, it says, the construction standards “are expected only to outline the methods and criteria for assessing the performance of construction products in relation to their essential characteristics”. In general, the report adds, “they are not setting requirements for products’ performance itself”.
Essentially, this refers to what the Commission itself days is the “division of powers between the EU and Member States”. The EU, it says, deals with the single market access rules. The Member States are responsible for safety, environmental and energy requirements applicable to construction works.
If that can be taken as a baseline (and I’m not sure it can be taken entirely at face value), then it does help clarify issues. In respect of fire safety, for instance, the Member States decide on the standard required, while the EU decides how that standard shall be met in terms of the product testing procedures.
Thus, if the UK government decides on – in this case – flame resistance standard, it cannot then decide to assess conformity with that standard by applying a combustibility test. Nor, for that matter, where the EU specified the Single Burning Item (SBI) test, via EN 13501, the Member State cannot then require a system test (as in BS 8414) as a mandatory additional requirement.
The results of these tests, which are to be carried out by BRS, are supposed to “help landlords make decisions on any further measures that may need to be put in place to make their buildings safe following the Grenfell Tower fire”. But, if BS8414 is used as the decision criterion for cladding safety, the UK will – on the face of it – most definitely be in breach of EU law. Ironically, that the UK did not breach this law in the first place was the proximate cause of the disaster.
Interestingly, in events such as these, the Commission is usually quick off the mark with proposals to improve safety and, as we already know, it has a contract in place (partly executed by BRE Global) to develop “a European approach to assess the fire performance of facades”. Not only is it strangely silent on this, nothing is being said about the UK running a cart and horse through EU law – although Brexit is undoubtedly partially responsible.
The crucial point, though, is that – if the UK government can’t even secure regulatory convergence on this one issue, while we are still in the EU, where do we see it going with 318 committees on the comitology register, with thousands of meetings to monitor and tens of thousands of laws and standards with which to maintain convergence?
The idea that the UK can slot in with a “bold and ambitious” trade agreement that covers all these bases looks more and more absurd by the day.