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IN THE GRENFELL TOWER INQUIRY
________________________________________________
OPENING SUBMISSIONS OF EXOVA (UK) LIMITEDPHASE 2, MODULE 1
________________________________________________
1. Introduction
1.1 Phase 1 of this Inquiry was devoted to the terrible events of 14 June 2017, a human tragedy
which continues to overshadow the ongoing investigations into why and how it occurred.
Phase 2 will look beyond those events, and seek to ascertain which factors – human,
institutional, or regulatory – may have influenced the tragedy, and to what extent. That in
turn will enable further recommendations to be made, with the hope and aim of ensuring
that no such devastating events will recur.
1.2 Phase 2 follows the Inquiry’s findings at Phase 1: in particular, that (i) the principal reason
for the rapid spread of fire up, down, and around the building was the use of ACM cladding
panels with a PE core, (ii) the PIR insulation used contributed to the rate and extent of fire
spread, (iii) the crown was primarily responsible for the spread of flame horizontally, (iv) the
columns were a principal route of downwards fire spread,1 and (v) the façade as a whole
did not comply with Building Regulations (specifically, functional requirement B4(1)).2
1.3 These submissions are structured around three questions to which those Phase 1 findings
give rise in Module 1:
(1) What was the sequence of events which led to the selection of the façade system?
(2) Who participated in those steps, and what factors were taken into account in the
relevant decisions?
(3) What was done to comply with the applicable regulations?
1.4 We take those questions in turn below, at sections 2–4 respectively. In the course of section
4, we also consider the relationship between the compliance process and the advice which
had been given by Exova.
1.5 Section 5 then considers Exova’s position in relation to the project generally, and the much
reduced role that it was allotted after 2013. Section 6 addresses at a high level (and non-
1 The foregoing points are summarised at para 2.13, and dealt with in detail at Chapter 232 This point is summarised at para 2.16, and dealt with in detail at Chapter 26
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exhaustively) some issues in relation to Exova that arise from certain of the witness
statements and expert reports that have been submitted for Phase 2.
1.6 Lastly, there is the broader question, arising across the modules, of what recommendations
can be made to prevent similar events occurring in future. That will be informed by the
whole of the evidence, at least from Modules 1–3, and so we propose to address it fully in
later submissions, though we indicate below a number of areas that the Inquiry may wish to
consider.
2. Decision making: the sequence of events
Initial considerations, and the move towards zinc
2.1 During Spring 2012, although Studio E indicated that it envisaged that cladding was likely,
and that potential subcontractors were being considered, no particular type of cladding
appears to have been under consideration,3 and it appears that there was not even a settled
intention to clad the building at all. In June 2012, for example, the Budget Cost Estimate
prepared by Appleyards4 contemplated the alternative possibilities either of “new cladding
including insulation … say VMZinc”, or of applying “new render including insulation”
instead.5
2.2 On 19 July 2012, though, a meeting between RBKC, Studio E, Max Fordham, and Taylor
Young, appears to have begun with the description, “it is to be a complete overclad project”.
Studio E “explained that an overclad and rainscreen system is being proposed”, and that
the options of zinc or ‘eternit particle board’ were “being investigated”. RBKC were
apparently willing to accept either, but wanted a colour other than grey.6
2.3 The possibility of using ‘eternit particle board’ appears to have fallen away,7 whereas zinc
continued to be referred to in documents prepared by Max Fordham, KCTMO, and Studio
E: and, as will be seen below, that remained the case for many months.8
2.4 On 17 August 2012, for example, Max Fordham’s Sustainability & Energy Statement
indicated that “The chosen strategy is to wrap the building in a thick layer of insulation and
3 {EXO00000474} {SEA00004117} {LBI00000017}4 During the course of the project, Appleyards was acquired by Artelia and rebranded accordingly; many of the later references in this document are therefore to Artelia5 {ART00006446_0004}6 {EXO00000923}7 We have identified only two passing references, in {SEA00007586} on 19 April 2013 and in {HAR00013446} on 18 October 20138 {MAX00000221} {SEA00000070} {SEA00007298}, albeit {HAR00015406} and {ART00002255} also suggest the contemplation of a possible change to aluminium
EXO00001774/2
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then over-clad with a rain screen”, and indicated that the former would be “Celotex FR5000”
and the latter “Zink” (sic).9
2.5 In September 2012, those comments were made again in Max Fordham’s Stage C report.10
Likewise, in October 2012, Studio E indicated both in its Design and Access Statement11
and in its Stage C report12 that “a zinc composite rainscreen cladding is proposed to the
upper levels”. In its Stage C Budget Costs Estimate Breakdown, Appleyards once again
made provision for “new cladding including insulation … say VMZinc”13 (but not now
including the earlier option for insulated render).
2.6 In January 2013, however, RBKC’s planning department rejected a proposal from Studio E
for zinc cladding because of the colour of the panels.14 Moreover, towards the end of that
month, Studio E were reporting that “Leadbitter have indicated that the project needs
significant value engineering to be affordable”:15 and Studio E have indicated that by now
the project was “effectively … on hold” due to KCTMO and Leadbitter being unable to reach
agreement on cost.16
Appearance, cost, the expectation of zinc, and the possibility of ACM
2.7 In and around early February 2013:
(A) on the one hand, communications between KCTMO, Studio E, Max Fordham, Taylor
Young, and Appleyards described further discussions with RBKC Planning, dealing
again with questions of colour and appearance,17 though commenting “we will retain
the zinc”;18 but
(B) on the other, Appleyards were communicating with Studio E, KCTMO, and Taylor
Young in relation to the “significant cost discrepancy with Leadbitter, not least of
which is on the cladding”, commenting that “we … have to do some work with them
first to ascertain the real gap and any VE [ie value engineering] options”, noting that
“they have indicated a £300k saving to switch from zinc to aluminium”.
2.8 On 26 February 2013, Appleyards again commented to Studio E and KCTMO that “there is
currently a significant deficit between the approved cost plan/budget and the initial figures
9 {MAX00000221_0006} {MAX00000221_0007}10 {MAX000000445_0082} {MAX000000445_0083}11 {SEA00000070_00018}12 {MAX00000445_00028}13 {MAX00000445_0184}14 {TMO00837466}15 {SEA00007245_0004}16 {SEA00014273} para 48 17 {SEA00007245} {SEA00007298}18 {SEA00007298}
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coming back from Leadbitter – not least of which on the external façade … where we are as
much as £483k … apart”, and asked for “a radical re-think of the scope/spec”.19
2.9 Studio E replied to Appleyards the same day with a list of “obvious targets for financial
savings”, the second of which was “change zinc cladding material to something cheaper”.20
Raising the possibility that “Planning will need a sweetener to swallow this”, Studio E
suggested “perhaps copper, ceramic, terracotta or more glass at low level”: implying that,
as previously, concerns from the planning authorities would be aesthetic.
2.10 The next day, on 27 February 2013, CEP indicated to Alcoa that they were due to meet
Studio E on 4 March 2013 to discuss the cladding, and that “due to the cost of Zinc
rainscreen [Studio E] are now considering alternative materials and finishes” and that CEP
would “propose [Alcoa’s] full Reynobond range”.21 It will be recalled22 that that range
included non-combustible and fire-retarded alternatives, as well as combustible alternatives.
2.11 The first documented reference explicitly to ACM (as distinct from references simply to
aluminium) appears to be on 4 March 2013:23 in an email to Appleyards, Studio E
commented that “We have had CEP come in today to discuss the cheaper ACM cladding
option” and that “From our conversation with CEP we feel there might be scope to switch
from zinc”.24
2.12 Despite these suggestions that there needed to be cost savings, and that they might be
obtained in part through using a cheaper cladding material, Studio E’s Stage D report
submitted some several months later, in August 2013, still refers to “zinc composite
rainscreen cladding” for the upper levels, specifically “pre-patinated zinc rainscreen on
aluminium cladding rails”. Further, it included an ‘Outline Specification’ which repeated that
description, and then indicated that there would be “100m folded metal shingles on steel
substrate: Rheinzink Blue”, as well as “150mm PIR” on the spandrel panels, “100m PIR” on
the columns, and “Celotex FR5000 (100mm) to existing columns”.25
2.13 In addition to extensive discussion of visual aspects, including various potential colour
schemes, Studio E’s report also included pictures of five “Alternative cladding options which
may be considered”, one of which was captioned “aluminium cassette rainscreen,
powdercoated finish” and another “Aluminium Composite Material (ACM)”: but no
19 {ART00005971_0005}20 {ART00005971}21 {CEP000006160}22 {CEP00050819}23 {ART00005971}24 {ART00005971_0002}25 {TMO00834924_0029}
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commentary was then included to elaborate on these options, or what consideration they
were to be given.26
The specification of zinc, the alternative of ACM, and the over-arching requirements
2.14 In November 2013, Studio E prepared a draft of the National Building Specification (“NBS”),
which would become part of the Employer’s Requirements that in turn would form the basis
on which KCTMO put the project out to tender. This specified “rainscreen cladding” as
“aluminium honeycomb core structurally bonded between two lightweight zinc sheets”.27
Such cladding types have been demonstrated by testing to meet the ‘A1’ / ‘A2’ classifications
and as such could have been used as part of a system which was compliant overall with the
prevailing requirements; indeed, the Inquiry’s architectural expert, Mr Hyett, endorses the
specification.28
2.15 The draft NBS also indicated that “in addition to the cladding specified” (as described
above), tenderers would also be invited to “submit comparative supply and install costs” for
a number of alternative materials: “Reynobond Duragloss 5000” (in various different
finishes), “Alucobond” (in two variants) and “Quartz zinc composite polymer panel by VM
Zinc”.29 Separately, the draft NBS specified “thermal insulation … Celotex … FR5000”.30
2.16 Further, the draft NBS set out a number of “general requirements” in relation to rainscreen
cladding generally, which included
(A) “Compliance standards: the Centre for Window and Cladding Technology (CWCT)
‘Standard for systemised building envelopes’”;
(B) “Information to be provided during detail design … Proposals to support outstanding
applications for Building Regulations consent and relaxations”; and
(C) “Information to be provided before commencement of testing or manufacture of
rainscreen cladding system … Detailed calculations to prove compliance with
design/performance requirements”.
26 {TMO00834924}27 {SEA00000152_0078} et seq28 {PHYR0000004} para 4.2.5229 {SEA00000152_0077}30 {SEA00000152_0086}
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2.17 Those “design/performance requirements”, then referred again to the CWCT Standard and
stipulated “Unless specified or agreed otherwise comply with … Part 6 – Fire
performance”.31 The CWCT Standard32 in turn stipulated:
(A) at paragraph 6.1.2, that “The building envelope shall also comply with the Building
Regulations or local building code”; and
(B) at paragraph 6.2, that “The building envelope shall not be composed of materials
which readily support combustion, add significantly to the fire load and/or give off
toxic fumes if ignited”.
2.18 The “design/performance requirements” also specifically required:
(A) “fire resistance of backing wall [nb defined as including the thermal insulation] to BS
476-21 … 60 min integrity, 60 min insulation”;
(B) “internal surface spread of flame of backing wall [nb as above] to BS 476-7 Class 0”;
and
(C) “cavity fire barriers to BS 476-20 … to resist the passage of flame and smoke for not
less than 30 min integrity, 30 min insulation”.33
2.19 Evidently, Studio E had felt confident defining standards of fire performance for different
aspects of the façade system without seeking further specialist input. It did not ask Exova
to review or comment on any part of the NBS.
2.20 Two months later, in January 2014, CEP provided Harley with two quotes, which included
provision for the design, fabrication, and supply of ACM cladding: one of the comparative
costs required by the NBS.34
2.21 At the end of that month the final version of Studio E’s NBS35 again referred primarily to
“aluminium honeycomb core structurally bonded between two lightweight zinc sheets”; it
indicated again that tenderers should also “submit comparative supply and install costs” for
the various alternative options;36 and reiterated in any event (i) the general requirement to
31 {SEA00000152_0082}32 {CWCT0000009} (nb this is a 2007 draft of the standard)33 {SEA00000152_0084}34 {CEP000003232}35 {SEA00000169}36 The associated ‘design intent drawings’ contained a mixture of references to zinc and aluminium composite
EXO00001774/6
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adhere to the CWCT Standard, including with respect to compliance and composition, and
also (ii) the design/performance requirements, including with respect to fire performance.37
The change from Zinc to ACM
2.22 In March 2014, KCTMO decided to appoint Rydon as ‘design and build’ contractor for the
project.38 The broader significance of that step is discussed further below; for the purposes
of this narrative it is enough to note that at a meeting between KCTMO, Rydon, and Artelia
on 1 April 2014 – convened to “introduce [Rydon] to the Client” – the substantive business
began with a long list of “proposed savings”, the first of which was a “potential saving” of
£376,00039 that would result from changing from zinc to aluminium panels and “using a face
fixing, rather than cassette”.40
2.23 Rydon then put that proposal forward to a ‘Grenfell Planners Group’ comprising
representatives of RBKC, KCTMO, Rydon, Studio E, and Artelia on 8 May 2014. In advance
of that meeting, an internal Rydon email commented “The basis of the meeting is to propose
the material change from ‘Zinc’ to ‘ACM – Aluminium’ cladding … so KCTMO can achieve
their maximum VE [ie value engineering] target”, and that “Reynobond ACM panels have
BBA certification – Class 0”.41 A later email from Rydon to the participants (other than
RBKC) indicated that the “goals” for the meeting included “put[ting] forward our case that
ACM is not an inferior product to Zinc”.42 Emails exchanged following the meeting indicated
that RBKC’s concerns were aesthetic.43
2.24 It appears that Harley were still looking at the possibility of Zinc, but also being guided by
cost: on 9 May 2014, an internal email refers to an apparent discussion with Reynobond:
“Zinc Patina D9120M is not currently available, but that aside, it would add circa £40k to the
cladding package. My vote would be to avoid showing this to the planners!”44
2.25 In mid-June, Rydon emailed Harley proposing that the switch from Zinc to Aluminium be
reflected in a cost reduction of between £419,000 and £577,000, depending whether the
system chosen was the cassette or the ‘face fixed’ version.45 Following further deliberations,
at the end of the month these figures were adjusted to £389,000 for the cassette system or
£552,000 for the face fixed version;46 and in mid-July Harley identified a single cost saving
37 {SEA00000169}38 {RYD00003419} {RYD00003420} {RYD00003749}39 For ease of reading this and other figures are rounded to the nearest £1,00040 {RBK00018805}41 {RYD00004142}42 {RYD00004179}43 {RYD00004696_0006} {RYD00004696_0004}44 {HAR00000955}45 {HAR00005852}46 {HAR00005854}
EXO00001774/7
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of £454,000 for using a cassette system on the spandrels with the face fixed version on the
columns.47
2.26 At the end of July, Rydon informed CEP and Alcoa that “The bottom line is that the client
has just confirmed to planning that they are looking to proceed with the Reynobond
champagne colour … for the main body of the building and the cladding will be the ‘cassette’
fixing version … It is unlikely that the Planners will have any major issues with the above
proposals as they have wanted ‘cassette’ fixings from the start. It may be wise not to order
the champagne colour until we have 100% assurance but you can certainly start getting
things rolling. Full design can now start. Therefore as a team we need to get the design
team meetings going asap, which I will co-ordinate and sent out meeting times shortly”
(emphasis added).48 49 Subsequent design team meetings were attended by
representatives of Rydon, Studio E, Harley, Curtins, and JS Wright.
2.27 The initial grant of planning permission was conditional on the submission of detailed
drawings and samples of material for the cladding: but the reason stated for that was “[t]o
accord with the development plan by ensuring that the character and appearance of the
area are preserved and living conditions of those living near the development suitably
protected” – there was no reference to compliance with Building Regulations.50
2.28 The ‘full plans’ application which KCTMO submitted to the RBKC planning authorities on 5
August 201451 continued to indicate zinc cladding, as did the plans submitted by Studio E
on 29 September 2014.52 Neither specified a particular insulation material or manufacturer.
2.29 It appears that the documents filed with RBKC on 1 July 2014 in support of the (successful)
application for the planning condition to be discharged did indicate that ACM panels were
to be used; it is not clear whether, at this stage, consideration was given to compliance with
Building Regulations.53
3. Decision making: participation and factors
3.1 The narrative set out above is notable for what it contains, and for what it does not:
(A) Reference is made repeatedly to aesthetic concerns and – decisively, it seems – to
questions of cost. Those in themselves can be legitimate issues: there is nothing
47 {HAR00005683}48 {CEP000004383}49 {TMO00831317} {RBK00029211} {RBK00029209}50 {RBK00000053_0002}51 {RBK00026860}52 {BMER0000002}53 {SEA00011262} {SEA00011253} {SEA00011246} {SEA00002736}
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inherently wrong with taking attractiveness into account, nor can there be any
objection to selecting a cheaper alternative if that alternative is a proper one.
(B) However, that question – whether the contemplated cladding was compliant – is
barely touched on. Compliance with Building Regulations – and, hence, safety –
receives the briefest of treatment: simply the comment by Rydon that “Reynobond
ACM panels have BBA certification – Class 0”.54
(C) Although Studio E identified products for comparative costing as part of the tender
process, there is no indication that it considered at that stage whether those products
would satisfy the general criteria that were also set out in the Employer’s
Requirements.
(D) Those involved in the change were evidently pursuing an agenda: “put[ting] our case
that ACM is not an inferior product to Zinc”,55 though (beyond noting that “powder
coated aluminium cladding” was already in use at the nearby Academy and Leisure
Centre) the reasons for that opinion were not stated. Indeed, it now appears that,
over and above the evident client pressure for cost reductions, Harley had a
particular motivation to press for ACM: Harley’s witnesses indicate that Harley had
made an error in its earlier quotation, and hoped that the switch to ACM would allow
it to recoup some of the losses that would result.56
(E) Likewise, although it is clear from those criteria that Studio E had considered the
detailed fire performance requirements to set out in the Employer’s Requirements,
we are not aware of any evidence to show that any of the participants responsible
for implementing the Employer’s Requirements took steps (either by themselves or
through obtaining specialist advice) to verify whether those requirements were being
complied with, either in proposing the change to ACM or in designing the ACM
system.
(F) Design work, beyond the pre-tender ‘concept’ / ‘intent’ stage, began only after the
high level decision to go with aluminium rather than zinc, with a ‘design team’ then
being formed to handle that work. From later emails, it is apparent that this design
team comprises representatives of both Rydon and Harley.
54 {RYD00004142_0001}55 {ART00008792}56 {HAR00010184} para 39 {HAR00010159} para 26
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(G) Although the planning authorities had been closely involved in the debate over the
choice of materials, that appears to have been solely from the perspective of visual
appearance, and without regard to safety or compliance.
3.2 Further, that narrative needs to be set in context, as part of the broader evolution of the
refurbishment project:
(A) Initially, it was KCTMO’s project, supported by Studio E and a range of other external
consultants. During this phase, strong concerns were raised over costs: the cladding
system was discussed between Studio E and Artelia as a source of significant
potential costs savings.
(B) In March 2014, the project changed fundamentally, becoming a ‘design and build’
(“D&B”) project rather than following what Mr Hyett describes as “the traditional
model”.57 KCTMO now became the Employer; it handed the project over to Rydon
as the D&B Contractor. Under the structure agreed between them:
(1) KCTMO set out its specification for the Project in the range of documents which
together formed the Employer’s Requirements;58
(2) Rydon agreed to accept responsibility for all aspects of design, construction,
and compliance;59
(3) Rydon took responsibility in particular for identifying and correcting any
deficiency, inconsistency, or omission in the Employer’s Requirements;60
(4) Subject to that, Rydon was obliged to fulfil the Employer’s Requirements or, if
it wished to depart from them, to obtain KCTMO’s approval under the formal
‘Change’ process61 – in particular, it needed to follow that process to change
from zinc to ACM, and would have needed to do so (though it never sought to)
in order to relax any of the general requirements in relation to the façade.62
(5) Rydon was permitted to sub-contract parts of its work, but on the basis that it
warranted that any design work, whether carried out in-house or by a sub-
contractor or consultant, would be carried out “using all the reasonable skill
57 The earlier evidence suggests that the initial intention had been to let the project on a traditional construction contract: the switch to the “D&B” approach being prompted by the high costs which were being suggested for such a contract by Leadbitter58 {RYD00000001}59 {RYD00000001} Appendix 1, cl 2.17.1.360 {RYD00000001} Appendix 1, cl 2.14 and cl 2.17.1.161 {RYD00000001} Appendix 1, cl 2.2.2, Schedule 162 cf. paras 2.16–2.17 above
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and to be expected of a professionally qualified and competent design and
build contractor experienced in the carrying out of such work for projects of a
similar size scope value character and complexity”.63
(C) Although the possibility of a switch from zinc to aluminium had been mooted in high-
level terms roughly a year before Rydon’s appointment, and was foreshadowed in
the request to provide comparative costs during the tender process, that suggestion
had not been substantively progressed.
(D) On the contrary, when Rydon was appointed, it was on the basis of Employer’s
Requirements which
(1) specified zinc cladding with an aluminium honeycomb core;64 and
(2) contemplated that alternative materials might be used, but in any event
imposed further requirements which required compliance with prevailing
regulations and included specific provisions with respect to fire performance.
(E) It was only later that – evidently guided by the pressure to cut costs – Rydon
(together with Studio E and Artelia, and with support from Harley) pursued, and
obtained KCTMO’s approval (and then RBKC’s) for the change to ACM; and only
then that work on designing the cladding system commenced, under a team that
comprised Rydon, Studio E, and Harley.65
4. Compliance issues
Background
4.1 At the time of the Grenfell Tower refurbishment, there were a number of routes by which a
proposed cladding system’s compliance with Building Regulations could be established:
(A) A full-scale test of the system under BS 8414, if it satisfied the performance criteria
set out in BR135, would comply with section 12.5 of Approved Document B (“ADB”).
(B) If a system had not been tested, but sufficient relevant data were already available
from other tests, Building Control could instead accept a formal assessment that the
system would pass the same test, issued as the opinion of a suitably qualified fire
engineer.
63 {RYD00000001} Appendix 1, cl 2.17.2.164 {ART00008158}65 cf. para 2.26 above
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(C) Under sections 12.6–9 of ADB, a cladding system was acceptable above 18m if it
satisfied three criteria: (i) the external surfaces needed to satisfy Class 0 (a ‘national
class’, achieved by reference to criteria for certain tests under BS 476) or at least
Class B–s3,d2 (a European class); (ii) any insulation product or filler material needed
to be of limited combustibility (or, implicitly, non-combustible); and (iii) cavity barriers
needed to be installed in compliance with section 9 of ADB. Again, the appropriate
classification might be demonstrated by test evidence, or by assessments based on
sufficient test evidence.
(D) Outside the scope of ADB, an alternative solution could be devised provided that the
relevant building control authority was satisfied that there was adequate fire
engineering evidence that it satisfied the functional requirement of Building
Regulations “adequately [to] resist the spread of fire over the walls and from one
building to another, having regard to the height, use, and position of the building”.
4.2 There is no indication that any of those involved contemplated requesting either a full-scale
test of, or an assessment in respect of, the proposed system; nor that any consideration
was given to the possibility of an engineered solution. On the contrary, the requirements
set out in the NBS, and the reference to “Class 0” above, are consistent with expecting to
achieve compliance through sections 12.6–9.
4.3 Building Regulations and Approved Document B, and the basic approach that they take, are
the bread and butter of the British construction industry. Construction companies need no
specialist advice to be aware of them; nor, likewise, do those involved in designing cladding
systems need to be pointed towards the provisions relevant specifically to external fire
spread.
4.4 In drafting the NBS, Studio E devised the fire performance requirements it considered were
appropriate for the cladding system. Through that document, Rydon were made aware of
them, and Rydon in turn passed on those requirements to Harley.66 Harley in any event
was a specialist contractor with its own designers, who would be expected to be aware of
the relevant provisions of Building Regulations and ADB.
4.5 The extent to which specialist input was needed, in order to determine whether a particular
cladding system was compliant, would vary depending on the route adopted. For example,
if there was documentary evidence that a BS 8414 test had been successfully conducted,
at an accredited facility, on the exact same system, that evidence in itself would suffice. At
66 {CCL00004300_0063}
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the other end of the spectrum, designing a bespoke engineered solution would require
advanced fire engineering expertise.
Compliance responsibilities
Overall
4.6 In the case of Grenfell Tower, it was for Rydon, having taken over the project before any of
the relevant decisions had been made, to determine what route to follow, what level of
expertise was needed, and whether it had that capacity in-house or through any of its
existing sub-contractors. If Rydon considered that it needed further external advice then it
was free to appoint the specialists of its choice. In this case, Rydon appointed Harley (with
whom it had an established commercial relationship) as specialist sub-contractor for the
façade.
4.7 There is no statutory requirement to engage a fire consultant or fire engineer. Rydon might
have been able to determine for itself, for example, whether the panels to which the BBA
Class 0 certificate related were the same as proposed for Grenfell (they were not); whether
the insulation to be used was of limited combustibility (it was not); and whether the system
was designed with cavity barriers in accordance with section 9 of ADB (it was not).
4.8 Rydon could, alternatively, have chosen to engage a fire specialist to advise on those points.
We know that the possibility of retaining an expert was considered – indeed, Rydon told
KCTMO (at the same introductory meeting on 1 April 2014 which considered the possibility
of abandoning zinc for aluminium) that it would “contact [Exova] with the view of using them
going forward”.67
4.9 That, though, was never done,68 nor did Rydon retain any alternative fire specialists. The
minutes – referring both to the potential switch to ACM, and the possibility of seeking fire
advice – were never sent to, or discussed with, anyone at Exova. We do not know why not,
but the evidence indicates that Rydon as a general practice chose not to instruct fire
consultants.69
67 {RBK00018805}68 {RYD00018337}69 cf. para 5.40 below
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Advice from Exova
4.10 At the time of Rydon’s appointment, the third and final version of Exova’s outline fire strategy
report70 formed part of the Employer’s Requirements:71 which elsewhere (as noted at
paragraph 2.21 above) specified zinc rather than aluminium cladding.
4.11 Exova’s report, dated 7 November 2013, did not deal expressly with cladding – at that stage,
a cladding system had not been chosen and so none formed part of the documents identified
in Exova’s report as the basis for its advice. There was nothing that Exova could have said,
in those circumstances, other than to identify the relevant provisions of Building Regulations
and Approved Document B: points which went without saying. (It was not normal practice
for Exova’s fire strategy reports simply to cut and paste provisions from ADB, and such a
practice would have served no purpose).
4.12 Instead, the report indicated that “It [was] considered that the proposed changes will have
no adverse effect on the building in relation to external fire spread” (which, on the details of
which had been made available to Exova at that point, was correct) “but this will be
confirmed by an analysis in a future issue of this report”.72 At the time the intention appears
to have been to use a system comprised of zinc panels with aluminium honeycomb
insulation: but no detailed specification or design had been set. Even if the material supplied
to Exova for the preparation of its report had explicitly indicated as much, Exova’s report
could properly have made the same comment.
4.13 In those circumstances, so far as Rydon was concerned:
(A) it could not have imagined that the report supported the cladding system eventually
chosen, because (i) that system was not chosen until many months later, (ii) the
report in any case made clear that the position in relation to external fire spread
required, and was subject to, further analysis;
(B) indeed, the project had changed in numerous other ways, such that (as Beryl
Menzies’ expert report73 notes) the last version of Exova’s report on the
refurbishment did not reflect the plans which were submitted to RBKC Planning on
the ‘full plans’ application;
70 {EXO00001762}71 {RYD00000001} Part 6, Schedule of Contract Information72 {EXO00001762} para 3.1.473 {BMER0000001} paras 37–39
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(C) it had no right in any event to rely on those reports, since they were issued on the
basis that they could not be relied on other than by their addressee, and they were
not addressed to Rydon; and
(D) there is nothing to suggest that it expected that Exova would provide it with a further
report, and it would have had no basis to expect that, since:
(1) it never asked Exova to prepare such a report;
(2) it never supplied Exova with the material that it would have needed to do so;
and
(3) it had no contractual relationship that entitled it to expect anything from Exova.
4.14 On the contrary, it was incumbent on Rydon itself to take forward the further analysis that
was needed, since:
(A) the report formed part of the Employer’s Requirements, responsibility for which had
passed to Rydon; 74
(B) not only was Rydon’s obligation to comply with those Requirements the basis of its
appointment, Rydon had agreed to identify and correct any omission in the
Requirements;75 and
(C) in any event, Rydon was obliged to ensure compliance with Building Regulations.
4.15 So far as KCTMO was concerned:
(A) it was involved in the decision to change from zinc to ACM, and also in other
decisions following Rydon’s appointment which made significant changes to the
proposed configuration of the lower four floors: it will have known, therefore, that the
advice Exova gave prior to Rydon’s appointment had been overtaken by subsequent
events; and
(B) in any case the D&B contract made clear that it now looked to Rydon in relation to
compliance issues across the whole scope of the refurbishment project.
74 {RYD00000001} Part 6, Schedule of Contract Information75 {RYD00000001} Appendix 1, cl 2.14 and cl 2.17.1.1
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Other participants
4.16 Studio E’s contract with KCTMO76 had indicated that it would serve as ‘Lead Consultant’,
‘Lead Designer’, and ‘Architect as Designer’ throughout RIBA Stages A–L, and that its
functions in those capacities would include:
(A) “Advising on the need for and the scope of services by consultants, specialists [and
others]”;
(B) “Co-ordinating design of all construction elements, including work by consultants [or]
specialists”; and
(C) “Providing designs, specifications, advice and information concerning the design for
which the designer is responsible … Determining materials, elements and
components … Preparing drawings … specifications … and production and tender
information … Giving due regard to the guidelines contained in … ‘Good practice in
selection of construction materials’”.
4.17 Subsequently, Studio E was retained instead by Rydon, on different terms, to provide a list
of specific “architectural services”.77 The impact of this change in Studio E’s position is
discussed in more detail at paragraph 5.34 below.
4.18 Artelia’s contract, dated 23 June 2014,78 identified the ‘Professional Team’ as comprising
Studio E, Curtins, and Max Fordham: it contained no reference to Exova. It also indicated
that Artelia was a ‘designer’ for the purposes of the CDM Regulations, albeit was “not
responsible for the design of the Project”.
4.19 Similarly, Max Fordham’s contract, also dated 23 June 2014,79 identified the other
Consultants “appointed … to provide professional services in respect of other aspects of the
Project” as Studio E, Curtins, and Artelia. Under that contract, Max Fordham remained
engaged by KCTMO, as it had been previously, but with a reduced scope.80
5. Exova’s position
5.1 A number of conclusions can clearly be drawn from the points above. Exova’s work
preceded the critical decisions in relation to the cladding system; so too did the preparation
of contractual documents which ought to have precluded those decisions; responsibility for
76 Set out in a letter dated 11 November 2013 {SEA00009821} and its enclosures77 {RYD00094228}78 {ART00009144_0034} cl 1.179 {MAX00001687}80 {MAX00017296} para 36
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those decisions was accepted by Rydon. Reliance may have been placed on others, in
making those decisions, but not on Exova: it was not asked for advice in support of those
decisions nor, having been cut out of the relevant loop, was it in a position to give such
advice nor even to warn.
5.2 In those circumstances, having already identified that the fundamental failing lay in the
cladding system, it would be quite wrong for a participant that (as we explain further below)
was side-lined at the time now to be put front and centre. We respectfully suggest that the
Inquiry’s focus in Module 1 will properly be directed principally at parties other than Exova.
5.3 Nonetheless, we take the opportunity of this statement to outline our position on the role
that Exova had, and the steps that it took to fulfil that role. The nature and extent of Exova’s
role derives from a combination of (i) the contractual terms under which Exova was
appointed, (ii) the general law in relation to professional advisers, and (iii) any applicable
regulatory or statutory duties. We take these in turn below, before turning to discuss the
fundamental changes which followed the award of the D&B contract to Rydon.
Contractual terms
5.4 Exova was appointed by KCTMO under two separate instructions: one in relation to the
existing building’s fire strategy, and one for fire strategy in relation to the proposed
refurbishment. The relevant terms are set out in two fee proposal letters81 which were
addressed to Studio E and accepted by KCTMO.82
5.5 For the existing fire strategy, Exova’s task was to assess the design of the building against
relevant design codes. Exova indicated that it would carry out a site visit to survey the
architecture and fire safety systems, and compile a fire safety strategy report which would
consider means of escape, fire safety systems, any smoke ventilation provided, and access
and facilities for the fire service. A number of points are worth noting:
(A) The proposed site visit was explicitly not intended to be a “detailed appraisal … of
the structural fire protection … or … fire compartmentation”: the letter provided that,
if such a survey was called, this could be instructed separately.
(B) It was assumed that “a suitable and sufficient” fire risk assessment had already been
carried out, and would be made available to Exova.83
81 {ART00000062} {EXO00001752}82 {EXO00000549}83 {EXO00001600} {EXO00001593}
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5.6 For the refurbishment fire strategy, Exova agreed:
(A) To produce a “preliminary fire strategy report” during RIBA Stage C, “summaris[ing]
the main fire safety issues for the project”, which would “assist early design
development”: “more detailed issues would not be covered at this stage of the work.”
(B) That this work “would be further developed” during RIBA Stage D/E, with a fire
strategy report considering “means of escape; assessment of the fire safety systems
requirements; recommendations regarding any smoke ventilation requirements;
determination of any external fire spread issues that they may be and the impact this
may have on the architectural design; recommendations of compartmentation and
structural fire protection standards; and assessment of the access and facilities for
the fire service”.
(C) At RIBA Stage F, to “assist the design team and appointed contractor … in
addressing the fire safety issues that appeared during the tender review phase”,
“troubleshoot strategic fire safety issues that are identified by the contractors”,
“discuss the contractors’ issues and the proposal solutions”, and “provide an updated
revision of the fire safety strategy documentation to reflect any agreed changes …
following any related design development and consultation with the approvals body”.
5.7 Thus, it was envisaged that, after Stage D/E, Exova would be concerned with issues which
(i) had arisen during the tender review (a process that Exova itself was not part of), or (ii)
were raised by the contractor. In effect, it was for others to seek Exova’s advice, identifying
the issues on which its input was sought. Even at the earlier stages, Exova was not
operating in isolation: the work that it would be able or expected to do was necessarily
governed in large part by (for example) the extent to which others asked Exova to review
particular material, the respects in which that material gave rise to issues that warranted
consideration at that stage, and the degree to which specific questions were raised.
5.8 Similarly, the parties agreed fixed fees in respect of Exova’s work on the existing fire
strategy, and the refurbishment fire strategy at Stages C and D/E. For Stage F, by contrast,
the fee letter acknowledged “the difficulty in determining the extent of work required”, and
so provided for any work to be charged at hourly rates, with the possibility of agreeing a
fixed fee “if the scope of work was further defined”. In the event, Exova charged below the
agreed level for Stage D/E.
5.9 Moreover, the approach set out in the fee letters was based on an assumption that “our
work would be carried out only once and would be based on an agreed set of building
layouts”, with “any further work … subject to an additional fee proposal”. That allowed for
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issues and possible solutions to be discussed between the various participants during Stage
F, but without the need to provide a full updated report unless and until a final set of plans
was agreed – by its nature, that approach would be less labour-intensive (and hence less
costly) than producing iterative updates, all but the last of which would be rendered obsolete.
5.10 In the event, Exova was never sent an agreed set of building layouts or asked for a Stage
F report, and it did not charge any fees in relation to Stage F.
The general law
5.11 Exova’s position was subject to the familiar legal principles that apply to all professional
retainers. In particular:
(A) Under the express terms of its contract, Exova was to exercise reasonable care in
providing its services;84
(B) It is trite law that (i) that such a standard of care permitted it to give advice that was
properly open to a competent professional in the relevant circumstance, and (ii)
where different professionals might take a different approach – might even reach a
different view – that in itself does not mean that either is negligent: and indeed
Exova’s standard terms gave it discretion as to the methods by which it provided its
services and reports.85
5.12 In addition, Exova’s standard terms (to which KCTMO agreed) provided that reports would
be prepared on the basis that there was no responsibility other than to the customer, in this
case KCTMO.86
5.13 Though the Inquiry is not responsible for making findings of legal liability, and so need not
consider matters through the lens of a legal cause of action, it is nonetheless relevant to
consider causation, not least because the Inquiry’s concern at Phase 2 is precisely with
identifying the decisions and other factors that led to the fire.
Regulatory duties
5.14 There is no regulatory duty to have a fire consultant at all.87 That raises the question of
whether, in relation to the project, Exova was nonetheless subject to duties under the
regulations in connection with fire safety and/or construction: principally (i) regulation 38 of
84 {ART00000062} cl 7.6 {EXO00001752} cl.7.685 {ART00000062} cl.5.4 {EXO00001752} cl.5.486 {ART00000062} cl.7.6.1 {EXO00001752} cl.7.6.187 Indeed, the Inquiry may want to consider whether there should be such a duty, in relation to projects sufficiently large or complex to call for it, and/or a defined process by which building control authorities can ascertain whether the need for specialist fire analysis has been considered and, to the extent necessary, addressed.
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the Building Regulations 2010; (ii) the Regulatory Reform (Fire Safety) Order 2005, or
“RRFSO”; or (iii) the Construction (Design & Management) Regulations, or “CDM”.88
Building Regulations
5.15 Regulation 38 imposed a duty on a person carrying out building works which were subject
to Part B of Schedule 1 to the Building Regulations, to provide certain information to
KCTMO, as the ‘responsible person’ for the building. That comprised “information relating
to the design and construction of the building, and the services, fittings and equipment
provided in or in connection with the building … which will assist [KCTMO] to operate and
maintain the building … with reasonable safety.”
5.16 Plainly, Exova was not a person carrying out building works. In any event, there was no
such information in Exova’s possession which was not also in Rydon’s possession. Indeed,
because (i) by the time the project completed, even the lower four floors no longer reflected
the plans on which Exova's reports had been based,89 and (ii) Exova was not responsible
for the selection of materials (for the cladding or for any other purpose) or the detailed design
(of the cladding or any other system), the information Exova had would have been outdated,
and either incorrect or at best inadequate for the purposes of reg.38.
5.17 Further, the obligation under reg.38 is to provide the relevant information “not later than the
completion of the work”: a point reached long after Exova’s last report (and long after Stage
F, the latest RIBA Stage which Exova’s engagement provided for).
5.18 Unsurprisingly, in the circumstances, none of the project participants ever requested
information from Exova for the purposes of compliance with reg.38, nor is there any
indication that any of them expected Exova to provide such information, or regarded that as
part of Exova’s remit.
RRFSO
5.19 The RRFSO applies to non-residential premises: and thus to the ‘common areas’ of Grenfell
Tower, but not the individual apartments it contained. There has been some debate as to
whether it is capable of extending to the façade: Beryl Menzies’ report indicates that it does
not.90
88 The 2015 Regulations came into effect on 6 April 2015, but with transitional provisions such that the CDM co-ordinator under the 2007 Regulations, Artelia, remained in place until 6 October 2015, when it was superseded by KCTMO as principal designer under the 2015 Regulations. This post-dated any relevant advice from Exova. For ease of understanding, this statement therefore deals only with the position under the 2007 Regulations.89 {BMER0000001} paras 37–3990 {BMER0000001_0027} para 84. The scope of the RRFSO is again any area which the Inquiry may want to consider.
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5.20 The RRFSO imposes duties principally on the ‘responsible person’, which for Grenfell Tower
was again KCTMO, and requires the ‘responsible person’ to nominate ‘competent persons’
to discharge certain of the functions required to be performed under the RRFSO.
5.21 Exova’s fee proposal for the existing fire strategy indicated that it would assess the building’s
design against relevant design codes, including the RRFSO. Exova’s fee proposal for the
refurbishment indicated that at Stage D/E the fire strategy would be “developed to comply
with the relevant statutory requirements”: primarily the Building Regulations but also the
RRFSO and the London Building Acts (Amendment) Act 1939 though, in the event, the latter
was repealed, as was reflected in Exova's report on the refurbishment.91
5.22 Most provisions of the RRFSO are cast in broad terms: for example, requiring the
responsible person to “take such general fire precautions as may reasonably be required in
the circumstances of the case to ensure that the premises are safe.” As such, it forms part
of the conceptual background to fire strategy analysis: whereas Approved Document B, for
example, sets out much more detailed recommendations.
5.23 Some provisions of the RRFSO (for instance, the requirement to keep exit routes clear) are
more detailed: but these largely concern the operation of the building, rather than its basic
design. In practice, therefore, at the stage in the project at which Exova prepared its fire
strategy reports – a point at which the concern was with the basic layout of the floors, and
the adequacy of the fire prevention measures in those areas – following the guidance in
Approved Document B will also have dealt, so far as possible, with the corresponding
provisions of the RRFSO.
CDM
5.24 The CDM’s main concern is generally understood to be the safety of construction work itself.
The broad structure of the CDM begins with the ‘client’ (in this case, KCTMO), then the
‘principal contractor’ (here, Rydon), and a ‘CDM co-ordinator’ (Artelia). Provision is then
made in relation to other ‘designers’ and ‘contractors’, including ‘additional duties’ in each
category where (as was the case here) the project is ‘notifiable’.92
5.25 A ‘designer’ is defined as “any person … who … prepares or modifies a design, or arranges
for or instructs a person under [their] control to do so, relating to a structure or to a product
… intended for a particular structure”; and ‘design’ for these purposes “includes drawings,
91 {EXO00001762_0005} para 2.392 The role of “CDM co-ordinator” was superseded under the 2007 Regulations by that of “principal designer” under the 2015 Regulations. KCTMO itself had that role with effect from 6 October 2015. Likewise, the duties of designers were articulated differently under the 2015 Regulations, which took effect from 6 April 2015. Since both dates fell after any relevant advice from Exova, this statement deals only with the position under the 2007 Regulations.
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design details, specification[s] and bill[s] of quantities (including specification of articles or
substances) relating to a structure, and calculations prepared for the purpose of a design”.
5.26 Exova’s fire strategy reports were prepared in part on the basis of designs provided to it by
Studio E. Those reports represented advice which could assist Studio E, or other
participants, in modifying those designs, or preparing further designs. From time to time,
Exova gave further advice by commenting directly on the content of such designs. Exova
itself, however, did not prepare or modify designs, whether in relation to the building
generally, or the cladding specifically.
5.27 Even if Exova were to be considered a ‘designer’ for CDM purposes, its primary duty would
have been, “in preparing or modifying a design”, “so far as reasonably practicable”, to “avoid
foreseeable risks to the health and safety of any person … liable to be affected by such
construction work”. So far as the cladding system was concerned, Exova was at no point
involved in “preparing or modifying a design”. As such, that duty could never have arisen in
relation to the cladding system. Certainly, it was not responsible for the design decisions in
relation to the selection of materials, and it was from those decisions that the risks arose.
5.28 Exova would also, if it were a ‘designer’, have had an ‘additional duty’ to “provide with [its]
design sufficient information about aspects of the design of the structure or its construction
or maintenance as will adequately assist the CDM co-ordinator to comply with [its] duties
under [the CDM] Regulations”. The fact that it would be all but impossible to apply that
provision meaningfully to Exova’s advice in itself provides further indication that Exova was
not a ‘designer’ for CDM purposes; and it is also to be noted that, at the time of the project,
neither Artelia nor any other participant appears to have regarded Exova as having been a
‘designer’ for CDM purposes, or as having other CDM duties.
5.29 By contrast, CDM duties undoubtedly rested with Rydon (as principal contractor), Artelia (as
CDM co-ordinator), and both Studio E and Harley (as designers), as well as KCTMO (as
client). Further, each of them had, in relation to their own duties under the CDM
Regulations, general duties to co-operate and co-ordinate their activities with others
involved in the project. Other than with regard to a small number of narrow questions, none
of the parties above sought any input from Exova in relation to the cladding system.
The performance of Exova’s role
Exova’s perspective
5.30 Through several different and practical routes, Exova provided advice which assisted the
design team, and in particular Studio E, in working towards a fire strategy for the
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refurbishment project. In addition to the fire strategy report for the existing building, and a
design note and three issues of an outline fire strategy report for the refurbishment, Exova
contributed frequently in other ways:
(A) Until Rydon’s appointment, Exova advised Studio E consistently on plans and fire
strategy drawings, marking them up or commenting on them by way of guidance, or
discussing issues over the telephone. Exova will produce a schedule separately of
the occasions on which they performed such services. These led to fire strategy
drawings which could be used as a basis for discussions with RBKC Building Control
on Building Regulations compliance.
(B) Exova also entered into email correspondence about fire safety requirements and
responded to queries raised on such requirements.
(C) Prior to November 2013 (by which point the tender process which led to Rydon’s
appointment was under way), Exova attended design team meetings as and when
requested to do so.
(D) Exova provided guidance to Max Fordham on Building Regulations issues in
connection with the smoke ventilation on the lower floors. It also offered to provide
Computational Fluid Dynamics (“CFD”) modelling as a means of demonstrating that
the proposed alterations to the smoke ventilation system would satisfy the ‘non-
worsening’ requirement under Building Regulations, though that offer was not taken
up. Max Fordham and the other contractors involved in the smoke ventilation system
had their own M&E design experience (which Exova did not) and accordingly took
the main role in relation to the new smoke ventilation system.
(E) Exova entered into dialogue with RBKC Building Control in relation to Building
Regulation compliance when asked to do so.
(F) Topics covered by Exova’s advice outside its reports included, by way of example,
the requirements in relation to:
(1) Fire ratings of internal surfaces;93
(2) Lobbies and their ventilation;94
(3) Fire stopping in connection with pipes passing between compartments;95
(4) The need for and ratings of fire alarms;96
93 {EXO00001406}94 {EXO00000604}95 {SEA00012655}96 {MAX00006095}
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(5) The fire resistance of cavity barriers in a façade system;97
(6) Smoke ventilation issues including extraction standards;98 and
(7) The use of the staircase in the event of fire by both residential and commercial
users of the Tower.99
5.31 Conversely, Exova was not invited to attend design team meetings after November 2013,
and, once Rydon was appointed and chose not to engage Exova (or any other fire engineer),
Exova was not:
(A) Involved in the tender process, including the preparation of the documents which
went on to form the basis on which contractors were subsequently appointed;
(B) Included in the design team responsible for the cladding system, or invited to any of
that team’s meetings.
(C) Involved in any discussions about the type, style, appearance, or composition of the
proposed cladding, even though discussions on these topics went on for many
months between Studio E, Rydon, and Harley: on the contrary, the only input Exova
had, as discussed in greater detail below, was on narrow questions relating to the
standards of fire performance required from cavity barriers.
(D) Informed of the decisions that were made in relation to the proposed insulation and
cladding materials, or asked to comment or advise on the proposed insulation and
cladding materials.
(E) Asked to update its Fire Strategy Report to include advice on the cladding system
and its component materials, nor to update it in light of the (unrelated) changes made
in relation to the lower four floors.
(F) Involved in any discussions with Building Control about cladding (other than
indirectly in connection with the fire stopping/cavity barrier issue discussed at
paragraphs 6.15 above).
(G) Consulted on the proposed changes to the ‘crown’, involved in the design of those
changes, or shown any drawings of them.
5.32 It is also worth noting that it was clear from the outset that KCTMO would retain a contractor
to take control of the project. What model would be adopted was not settled initially, though
97 {RYD00018179}98 {EXO00000617}99 {EXO00001573}
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it became clear relatively early on that the ‘D&B’ approach would be chosen, as is a common
approach for local authorities.
5.33 Such a change in the nature of the project meant that there would most likely be alterations
in the relationships among members of the design team, and also raised the strong
possibilities (a) that their respective roles and terms of engagement would alter, and (b) that
the project itself would change substantially.
5.34 That is exactly what happened. Some participants found themselves remaining actively
involved but with reduced roles. Studio E, for example, became sub-contractors to Rydon,
rather than lead designers to KCTMO, and in their new role took the view that their altered
role was now to ensure that Rydon’s work adhered to the “design intent” set out previously.
Max Fordham, meanwhile, were not instructed by Rydon (who instead engaged JS Wright)
and instead remained under contract to KCTMO, but in a much-diminished supervisory role.
Others, such as Exova, were not retained by Rydon, and so had no contractual role in the
design team that Rydon chose and led.
5.35 These changes show that the roles of the consultants, however they may have been
articulated previously, remained fluid and evolving: and, in practice, were conditional on the
outcome of a future tendering process, and decisions taken by the contractor then
appointed.
5.36 In those circumstances, Dr Lane’s thesis that the scope of Exova’s responsibilities was to
be set by Exova itself, and was to remain fixed and permanent, is plainly wrong. The
participants accepted in practice the possibility that, as and when KCTMO selected a
contractor, their roles and responsibilities were subject to change and might indeed end
altogether. Exova, not having been appointed by Rydon, had no right to perform tasks which
Rydon neither sought nor were under any obligation to receive.
5.37 Indeed, it is strongly arguable that, upon entering into a Design & Build contract with Rydon,
under which Rydon was entitled and able to choose its design team and which consultants
to call on (or not call on) in pursuit of the project, KCTMO effectively put an end to Exova’s
continuing obligations. In any event, as explained at paragraph 5.7 above, Exova’s scope
was essentially reactive beyond Stage D/E, and whilst it is clear now that a rather undefined
expectation seems to have existed among some of the participants who remained actively
involved in the project, that Exova would co-operate with reasonable ad hoc requests for
assistance, matters went no further than that, as the following paragraphs make clear.
5.38 Following Rydon’s appointment, Exova was asked only for comments on discrete and
limited issues: and, of these, the only issues which related to the exterior of the Tower
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related to the need for cavity barriers between windows, the fire resistance requirements for
cavity barriers, and a difference of opinion between Siderise and Building Control as to the
need for fire stops rather than cavity barriers.
5.39 These communications took place in November 2013, September 2014, and March 2015,
and are considered in more detail at paragraphs 6.13 et seq below. They did not relate to
the choice of materials, and so far as is known Building Control never raised any issue in
that regard with Rydon, Studio E, or Harley.
The impact of the D&B model
5.40 The choice by Rydon not to novate Exova’s contract with KCTMO, and not to appoint Exova
or any other fire consultant, was deliberate:
(A) Bruce Sounes (Studio E) states that “Post Contract” (meaning, after Rydon had been
selected as principal D&B contractor) Studio E had direct interaction with a number
of entities. “Exova, however, was an exception. To the best of my knowledge Rydon
did not take over Exova’s appointment from KCTMO Post-Contract. However, we
approached Exova on behalf of Rydon on a number of occasions … for discrete
advice … To the best of my knowledge there were no other fire consultants involved
in the Project”.100
(B) Mr Sounes states: “Around this time [24 March 2014, [ie around a week before the
‘introductory’ meeting referred to at paragraph 2.22 above] I asked Simon Lawrence
whether Rydon would extend Exova’s appointment or appoint another fire
consultant. Simon said that Rydon typically did not engage fire consultants on the
basis that the strategy was established by the client’s team and, as contractor, it was
responsible for executing it. He regarded it as Building Control’s responsibility to
raise any concerns and satisfy themselves with the details of the submission”.101
(C) Neil Crawford (Studio E) acknowledges that both he and Simon Lawrence (Rydon)
were aware that Exova had not been retained by Rydon, or by Studio E – Mr
Crawford appears to have considered that Exova “possibl[y] … remained appointed
by KCTMO”, and notes that Exova had not objected to answering queries that were
raised with it,102 but does not indicate that he understood Exova to have retained any
particular responsibilities.
100 {SEA00014273} paras 36 and 37101 {SEA00014273} para 372102 {SEA00014275} para 188
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(D) On the contrary, Mr Crawford records Mr Lawrence as having said, in relation to
Exova, “So if you are getting some free advice then great otherwise we will need to
look at this”,103 implying in effect that those who remained involved in the project
knew that a proper arrangement was not in place but were content for matters to
remain that way.
(E) Likewise, David Hughes (Rydon) states that his understanding was that Terry Ashton
“would answer any queries relating to the original fire safety strategy report”.104
(F) Simon Lawrence (Rydon) lists the parties “connected to the project” and does not
refer to Exova.105
(G) The Inquiry’s architectural expert, Mr Hyett, comments: “I understand that although
Rydon chose not to appoint Exova under their Design and Build contract (during
which time Studio E were novated to Rydon) Exova’s appointment was maintained
and that they remained available to provide advice to Studio E on an ‘as and when
needed’ basis as evidenced for example in the email exchange between Studio E
and Exova requesting advice with respect to the confusion relating to terminology in
connection with cavity barriers and fire stopping”.106 107
5.41 Mr Hyett makes a number of observations in relation to the implications of the design and
build model generally. With regard specifically to the D&B structure at Grenfell, we note
also the following:
(A) The structure entailed Rydon accepting a broader overall scope of responsibility than
it was able to fulfil, and then selecting and relying on others to fulfil much of that
scope (notable in particular is Rydon’s acknowledgement that it had in fact no in-
house design capability at all), but without agreement as to the extent to which it
would sub-contract or the identity or qualifications of sub-contractors.
(B) As described above, the project’s transfer had an unavoidable practical impact on
KCTMO in that it ceased to be in a practical position to give instructions, seek advice,
or request or receive reports, and those (such as Studio E) with whom Exova had
dealt in the past were now working for Rydon, who had chosen not to retain Exova.
(C) Whereas Exova’s engagement terms contemplated that, at Stage F, it would “assist
the design team in addressing the fire safety issues that appeared during the tender
103 {SEA00014275} para 197104 {RYD00094213} para 70105 {RYD00094220} para 30 106 {PHYR0000007} para 3.1.10 107 {EXO00001294}
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process”, “troubleshoot fire safety issues that are identified by the contractors”, and
“discuss the contractors’ issues and the proposed solutions”, in practice the lead
contractor did not engage or look to Exova for such support, and its subcontractors
only sporadically contacted Exova and to a very limited extent on discrete issues.
5.42 The upshot is clear. The Employer’s Requirements included a range of provisions that ought
to have ensured compliance with Building Regulations, even in the event of a change from
zinc to aluminium. However, once (i) KCTMO had handed responsibility for drafting the
Employer’s Requirements to Studio E, and for implementing them to Rydon, and (ii) in
relation to the cladding, Rydon had in turn handed it to Harley, none of them appear to have
considered the compliance position of the products that were eventually selected for the
cladding system, and the design of that system: whether they in fact complied with the
Employer’s Requirements, or with Building Regulations / ADB. The necessary implication
of the Inquiry’s findings at Phase 1 is that they did not.
5.43 We are also unaware of any evidence to suggest that steps were taken to fulfil with the
various provisions in the Employer’s Requirements which required information and
calculations to be submitted to demonstrate that the façade system met the various
applicable requirements.108
6. Phase 2 evidence: initial comments
Dr Barbara Lane
6.1 Dr Lane has indicated that she intends to provide a number of reports for the purposes of
Phase 2. As at the date of this statement, she has issued one report, which deals specifically
with Exova. We say respectfully but firmly that the approach Dr Lane has taken, and the
conclusions she has reached, are misjudged, not least for the following reasons:
(A) Dr Lane looks at Exova’s position as if it can be divorced from its broader context.
In particular, she neglects to consider:
(1) the understandably limited requirements or expectations of KCTMO at the
early stages of the project;
(2) the fact that Exova was substantially excluded from the project after the third
issue of its report on the refurbishment, in November 2013 – that position being
cemented, from early 2014 onwards, by the fundamental shift to the D&B
108 {SEA00000169_0069} para 235
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model and the D&B contractor’s conscious decision not to retain a fire
consultant;
(3) the fact that every critical decision in relation to the cladding system was taken
after that date and without Exova’s involvement.
In the context of a catastrophic fire that resulted from the selection, design,
installation, and approval of an unlawful cladding system, we respectfully submit that
the Inquiry should bear carefully in mind the different roles of the various participants:
Exova, for instance, was responsible for none of the above steps, or the decisions
which led to them, and it at no point endorsed the system in question.
(B) Likewise, Dr Lane sets out a forensic review of Exova’s various reports but again
fails to set it in context. For example, she comments at great length on matters that
she says were not addressed in Exova’s reports, but fails to explain:
(1) whether there was information available to Exova on which it could have
commented; or
(2) whether Exova needed to comment, at the stage in question; or
(3) whether any consequence flowed from Exova not having commented.
Such an exercise is not helpful to the Inquiry’s task of ascertaining the steps that led
to the tragedy of Grenfell Tower: a tragedy which was nothing to do with Exova’s
reports.
(C) Dr Lane not only neglects to consider the range of different approaches that different
fire consultants might legitimately take, she reviews Exova’s conduct against a
guidance document which sets out one such view and which she acknowledges had
not been published at the time.
6.2 Further, Dr Lane’s insinuation that Exova had knowledge of the materials being used in the
cladding system is unfounded:
(A) Reference is made to various documents that existed between September 2012 and
November 2013. Even setting aside the absence of evidence that material
specifying a cladding system was actually available to, or accessed by, Exova, the
whole of that timeframe predates the decision (in which Exova was not involved) to
change from zinc to ACM.
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(B) The various questions put to Exova subsequently were not in relation to proposed
materials, but rather to the requirements of Building Regulations in terms of cavity
barriers, fire stope, or performance standards.109
6.3 Lastly, and crucially, Dr Lane appears to suggest that Exova’s report ought to have set out
“the required performance to comply with B4”. However:
(A) The audience for Exova’s advice at the point of issue comprised expert architects
who evidently ought to have been familiar with the requirements of Building
Regulations and the guidance contained in the Approved Documents: and who
evidently considered that they had sufficient expertise to set out detailed provisions
in the Employer’s Requirements without seeking further specialist input.
(B) Those who might have referred to Exova’s advice later were an experienced D&B
contractor, Rydon, and a specialist cladding contractor, Harley, neither of whom will
have needed simply to be pointed to Building Regulations. If all that Exova was
required to do for this audience was to remind or repeat the performance
requirements set out in the Building Regulations, of which they were individually and
collectively well aware, then such a requirement was redundant.
(C) In any event, the contractual specification of the works, which Rydon agreed to and
then sub-contracted to Harley, set out a range of requirements: and Rydon and
Harley were obliged not only to fulfil those specifications, but to provide documentary
evidence to show that they had done so adequately.110
(D) Conversely, if any of those parties had wanted or expected more of Exova – and
none of them, at the time, gave any indication that they did – then they would have
needed to provide more detailed information on which Exova could have advised.
That was never done.
109 As explained at para 6.14(D) below, Harley at one stage suggested that cavity barriers would not be needed on the basis that the intended insulation was ‘Class 0’, and attached a product data sheet to that email, but Mr Ashton replied in effect that that classification was not relevant and that cavity barriers would still be required.110 {SEA00000169_0069}
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Cavity barriers
The effectiveness of cavity barriers
6.4 The reports of Mr Hyett and Dr Lane focus in considerable detail on points in relation to
cavity barriers. There are essentially two issues:
(A) The cavity between the (insulated) concrete wall of the building, and the rainscreen
cladding panels – where cavity barriers were to be located, and what level of
resistance they required;
(B) The cavity around the window openings, and the lack of further barriers there.
6.5 These questions have already been the subject of clear evidence during Phase 1. In relation
to the cavity between the wall and the rainscreen:
(A) Prof Torero explained that the combustible nature of the rainscreen destroyed the
purpose of a cavity barrier: “A cavity barrier is a system that is designed to close a
duct when you expect that your propagation is within the duct. If you put combustible
materials outside the cavity barrier, the cavity barrier actually has no meaning,
because effectively the burning can happen around the cavity barrier … So in this
particular type of scenario the fundamental principle behind why we put cavity
barriers in is inappropriate because we have combustibles at both ends. So it is not
blocking any path pf propagation … It is the same thing. If the aluminium panels
warp, deform or fall off then the whole concept of a cavity barrier doesn’t apply”.111
(B) Prof Bisby said much the same: “Quite quickly, the rainscreen cassettes are
deforming or gone or burning and you no longer have a cavity, which defeats the
purpose of having a cavity barrier”.112
(C) Dr Lane did likewise: “A cavity barrier cannot stop a flame in a cavity if the wall itself
is burning….the wall itself is burning and so the cavity barrier cannot seal the cavity
because there is in a way no cavity because the wall is burning … I think it makes
no difference whatsoever where the cavity barriers at Grenfell Tower were because
they were put in a rainscreen cladding system formed of a polymeric core”.113
6.6 The consensus, in other words, was that the positioning of the cavity barriers was academic:
they would have been unable in any event to resist the spread of fire, whether vertical or
111 [Transcript Day 77 p.138/25 to 140/15]112 [Transcript Day 78 p. 90/3-5]113 [Transcript Day 79 p.144/3-145/1]
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lateral. It follows that the cavity barriers cannot be regarded as a separate cause of fire
spread.
6.7 In relation to the cavity around the windows:
(A) Prof Torero explained that the purpose of the cavity barriers was not understood as
being to protect a fire’s exit path from the building;114
(B) Prof Bisby commented, “I can’t imagine how one would actually achieve what one is
attempting to achieve by putting a cavity barrier round a window”;115 and
(C) Dr Lane agreed that it was “not obvious” how one “could have provided cavity
barriers”, given the “complex … interconnection of all the cavities”.116
6.8 Again, therefore, the thrust of the (unchallenged) evidence from Phase 1 appears to be that
such cavity barriers could not and would not have impeded the spread of the fire.
6.9 Mr Hyett in his Phase 2 expert report has put forward a bespoke design which he believes
would have been effective. The Inquiry may wish to explore that during oral evidence.
6.10 Exova was not an expert cladding designer; it was not asked, and could not have been
expected, to design a bespoke cavity barrier system. In terms of the advice that it was able
to give, it was not asked, nor did it have the detailed design material it would have needed,
to do more than advise on the relevant guidance as set out in ADB: and on the basis of the
Phase 1 evidence, following that guidance would still not have resulted in an effective
system.
6.11 As for a bespoke cavity barrier system that a specialist cladding contractor could
(hypothetically) have designed, any fire input would have required advanced analysis of the
sort that would have required a separate instruction.
Advice in relation to cavity barriers
6.12 Exova was asked questions in relation to cavity barriers on three occasions, and we deal
with these in turn below.
114 [Transcript Day 77 p.144/18 to 145/18]115 [Transcript Day 78 p.106/9-17]116 [Transcript Day 79 p. 56/16-56/24]
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6.13 November 2013:
(A) On 1 November 2013, Tomas Rek (Studio E) asked Terry Ashton (Exova) to “confirm
that the rainscreen cavity fire barriers are to be 60min FR”.117 Mr Ashton replied on
4 November 2013 indicating that those cavity barriers “need only have a 30 minute
standard of fire resistance”.118
(B) That was consistent with the guidance in Approved Document B. Mr Ashton could
have been more precise, and said explicitly that the 30 minute requirement applied
both to integrity and insulation: but it appears that Studio E understood that that was
the case, since the NBS that Studio E prepared called for cavity barriers “to resist
the passage of flame and smoke for not less than 30 min integrity, 30 min insulation”.
6.14 September 2014:
(A) On 18 September 2014, Neil Crawford (Studio E) forwarded on to Exova119 a
Request for Further Information which had been received from Harley.120 The RFI
sought confirmation as to “the required extent of the horizontal firebreaks within the
cladding areas”, commenting that “We believe that they will be required at every floor
level on the vertical columns, but not in the area of cladding between windows. This
is because there is no ‘chimney’ effect here, and therefore the cladding will not add
to the spread of fire”.
(B) The NBS which Studio E had prepared, and to which Harley and others were
working, contained both specific requirements in connection with cavity barriers, and
a general requirement to clarify with Building Regulations. The natural inference is
that Harley were applying their minds to those requirements, and had identified this
question (but not, so far as we are aware, any others) on which they considered
further guidance was needed.
(C) Mr Ashton responded later the same day, noting that he had “never seen details of
what you’re doing to the external walls”, and commenting that “if the insulation in the
cavities behind the rainscreen cladding is combustible you will need to provide cavity
barrier as shown on your drawing (number 1279 (06) 120) in order to prevent fire
from spreading from one flat to the one above even if there isn’t a continuous cavity
from the top to the bottom of the building”.121 That drawing indicated cavity barriers
117 {EXO00000587}118 {EXO00000586}119 {HAR00003638}120 {HAR00012091}121 {EXO00001430_0003}
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both horizontally, at floor/ceiling level, and vertically, between apartments (and
hence between windows). It is important also to note that Approved Document B at
that time did not insist on non-combustible insulation. Section 12.5 permitted
systems which met the performance criteria in BR135 based on BS 8414 test data:
such tests are conducted on systems as a whole, rather than individual components,
and so that route did not exclude systems which were able to satisfy those criteria
despite including combustible insulation. The alternative route under sections 12.6–
9 allowed insulation which was of limited combustibility, rather than non-combustible.
(D) Mr Anketell-Jones (Harley) then commented122 that ”The insulation is class 0”, and
on that basis suggested that no fire barrier was necessary. Mr Ashton, though,
responded123 that “A material which has a Class 0 rating is not necessarily non-
combustible although the reverse is invariably true. Some Class 0 products will burn
when exposed to a fully developed fire. In any case, you need to prevent fire spread
from [one] flat to the flat above as I stated in my earlier email”. In other words, Mr
Ashton made clear that the classification of the insulation product would not relieve
the obligation to install cavity barriers as he had indicated previously.
(E) Mr Ashton’s advice could have gone further (a) in clarifying that the requirement with
respect to insulation material was that it be of ‘limited combustibility’ as distinct from
‘Class 0’, and (b) in noting that ADB indicated that there ought as a general
requirement to be cavity barriers around the window openings, although that was not
the context in which the particular design issue about the cladding cavity barriers
was raised with him. That said, the overall position in relation to cavity barriers,
based on the experts’ Phase 1 evidence, does not suggest that such barriers would
have been effective to resist the egress or spread of fire.
6.15 March 2015:
(A) On 3 March 2015, Mr Crawford (Studio E) informed Mr Ashton124 that horizontal and
vertical “fire breaks” had been added around each apartment, and asked whether it
was suitable for these breaks to provide 90 minutes integrity and 30 minutes
insulation. It does not appear that Mr Ashton responded to this email. That said, as
noted above, the requirement of Approved Document B in relation to cavity barriers
was in fact 30 minutes, as Mr Ashton had confirmed to Studio E, and that applied
both to insulation and integrity, as Studio E had reflected in the NBS.
122 {EXO00001430_0001}123 {EXO00001430_0001}124 {EXO00001315}
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(B) There was in any case a further detailed exchange later in the month. On 30 March
2015, John Hoban of RBKC Building Control emailed Rydon, Studio E, and Harley125
indicating his view that the cavity barriers which ADB indicated should be installed,
level with the floors / ceilings of the building, were in fact required to be fire stops,
with the same level of fire resistance as the main structure of the building. On 31
March 2015, Mr Crawford replied,126 “we are all miffed as to why this detail is not a
cavity barrier in this location”: the “all” presumably referring to Rydon, Studio E, and
Harley as well as Siderise. The same day, he forwarded that email on to Mr
Ashton,127 asking for his view.
(C) Mr Ashton commented128 that he believed that a cavity barrier was all that was
required. He added, “it is difficult to see how a fire stop would stay in place in the
event of a fire where external flaming occurred as this would cause the zinc cladding
to fail”: essentially the same point as was made, at Phase 1, by Profs Bisby and
Torero and Dr Lane, that a cavity barrier is redundant once fire has impinged on the
outside wall such that there is no cavity.
(D) Subsequently, Mr Hoban accepted that the applicable requirement was for a cavity
barrier rather than a fire stop.
(E) Dr Lane considers that Mr Ashton was wrong to have taken the view that the detailed
point in question “isn’t something that would necessarily form part of a fire safety
strategy for a building”: but in any event he answered the question, and as to the
substance of his advice, that a cavity barrier rather than a fire stop was required, Dr
Lane states that she agrees.129 Mr Hyett likewise describes Mr Hoban’s original
position as “a complete misinterpretation” and “erroneous”.130
7. Conclusion
7.1 We know that the Phase 2 hearings will be difficult and emotional for all those affected by
the fire. No-one who lived there, no-one connected with those who lived there, deserved to
suffer the dreadful effects of the fire and its aftermath.
7.2 Grenfell was a human tragedy that need not have happened. It is likely that it was the
consequence of a range or combination of possible factors including human error,
inadequate regulations, confusing guidance and long-standing habits. It is not appropriate
125 {HAR00003949}126 {EXO00001294}127 {EXO00001294}128 {EXO00000715}129 {BLARP20000003_0212} {Table 9.1}130 {PHYR0000004_0148} paras 4.4.118–119
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to forecast at this stage what precise conclusions will be drawn. It is appropriate, though,
to suggest that all participants must assist the Inquiry in coming to accurate and reliable
conclusions.
7.3 Phase 2 will require an investigation every bit as rigorous as was followed at Phase 1. The
Grenfell community are entitled to know how and why decisions evolved which led to such
unintended yet avoidable consequences: and the public at large will rightly look for
recommendations to protect the future safety of those living in residential buildings
throughout the country. Lastly, noting with humility the unique role that those directly
affected by the fire have played in this process, we sincerely hope that its next phase will
achieve some measure of closure for them
MICHAEL DOUGLAS Q.C.
4 Pump Court
Temple
SIMMONS & SIMMONS LLP
Solicitors for Exova (UK) Limited
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