Department for Levelling Up, Housing and Communities Evidence - Tuesday 22nd March 2022 (2/2)

Full transcript

00:26:35 uh

00:26:44 good afternoon everyone uh good afternoon mr millet uh if you are ready to begin

00:26:50 to begin uh perhaps you'd invite the usher to call mr martin into the room yes thank you mr chairman may we please have mr martin back in the hearing room please

00:27:12 good afternoon mr martin afternoon set uh you're ready to carry on i hope are you yes

00:27:18 you yes thank you very much yes sir when you're ready mr chairman thank you very much um mr martin i'd like to turn next please to the review of approved document b which took place after 2011

00:27:29 which took place after 2011 as part of the wider review of building regulations and guidance which i think led to amendments certain amendments to adb

00:27:37 adb uh in a new edition in april 2013. now can we start please with bob ledson's witness statement clg 3019465 page 10 paragraph 33

00:27:56 he says this underneath the heading coalition government building regulations deregulation review 2011-2013 and he says in december 2010 the then

00:28:07 and he says in december 2010 the then building regulations minister andrew stunnell announced plans for a program of work on the building regulations this followed an invitation for ideas based on 29th of july so issued on 29th july

00:28:18 on 29th of july so issued on 29th july 2010 his statement said that the program will have a particular focus on deregulation and streamlining of the technical and procedural aspects of the regulations

00:28:30 regulations this led to the 2011-2013 review of building regulations the review was a comprehensive exercise in terms of coverage but did not involve an in-depth review of all of the technical standards the aim was to

00:28:42 technical standards the aim was to identify quotes quick wins close quotes for deregulation and system improvement and then he goes on to identify the outcome now just that last paragraph there

00:28:53 there paragraph 34 do you agree with what he's with what he says there yes

00:28:58 yes and do you agree in particular that the aim was to identify what he calls quick wins for deregulation yes the the government came in following the um financial crisis that started in

00:29:10 the um financial crisis that started in i think was 2008 and

00:29:13 and their focus was on trying to stimulate the economy by reducing the impact of regulation yes and do you uh well you could see the words invitation for ideas do you remember whether that

00:29:25 for ideas do you remember whether that referred or covered all parts of the building regulations and approved documents including part b

00:29:36 and yes but part b was involved yes now the invitation i think was open to the public wasn't it anyone could submit ideas or comments yes yes and

00:29:45 and as andrew stunnel i think explained at the time there was a particular focus on streamlining and deregulation is that is that how you recall it absolutely as i say the the objective was to reduce the economic burden of uh

00:29:57 was to reduce the economic burden of uh regulation on industry as a way of stimulating the economy following the financial crisis can we go to clg 3019136

00:30:05 3019136 please

00:30:07 please this is a run of emails in october 2010 and if we go to the top email sent by you on the 25th of october 2010 to ken knight we don't need to go through the entire background we can see from the

00:30:18 entire background we can see from the email below it

00:30:21 vert if you just scroll down to the second one first that he has sent you um something and asked a question has the nice ic proposal got legs uh obviously a follow-up etc

00:30:33 uh obviously a follow-up etc um

00:30:34 um and that i think is about the national inspection council for electrical installation contracting isn't it yes it's about part p electrical safety yes yeah now your response is as follows and we need to look at that we can scroll to

00:30:46 we need to look at that we can scroll to the top of the screen um thanks ken it's complicated as with all things related to building regs on the one side there is a desire to reduce regulatory burden in the your freedom exercise there were a high

00:30:58 freedom exercise there were a high number of submissions from ordinary citizens probably electricians calling for revocation of part p electrical safety of the building regs on the other side we have nice ic and other electrical safety campaigners calling

00:31:10 electrical safety campaigners calling for part p to be made more onerous the sephora event was part of an ongoing campaign i think giving industry i.e the nic eic

00:31:19 nic eic responsibility for the future development of the technical requirements contained in approved documents p would be a bit like letting ronnie king rewrite or sorry right agb exclamation mark it would say the department the

00:31:30 mark it would say the department the cost of drafting the ad but that isn't necessarily in the best interests of uk plc

00:31:37 plc given the number of responses on yf that's your freedom it's likely we will do something to part p although what we do is by no means clear now just breaking that up is it right

00:31:48 now just breaking that up is it right that the invitation for ideas um launched on in in the july of 2010 was part of the then government's your freedom exercise in other words a crowd sourcing exercise aimed at stripping

00:31:59 sourcing exercise aimed at stripping away excessive regulation yes i think they they were asking anybody to list any bits of regulation they thought were unnecessary um to bring them to the attention of government so that we could look to see whether we could remove them

00:32:11 look to see whether we could remove them or not now in your statement if we go to your statement please page 76 paragraph 199 at the end of the second to last line you say this uh

00:32:21 uh in my email to sir ken knight i note that all things to do with building regulations are complicated by complicated by which i meant that where you are trying to balance

00:32:32 that where you are trying to balance deregulatory policy with calls for increased regulation that creates an inherent policy challenge was the inherent policy challenge a matter that you raised at this stage or

00:32:43 matter that you raised at this stage or any other with officials senior to you or with ministers

00:32:49 um i don't think i would have done i mean it's a it's a fundamental principle that there are there are two directions in which the police policy gets pulled that's that's the nature of policy work

00:33:02 that's that's the nature of policy work uh what one direction being industry in the other direction being safety or in in the case of safety regulation i guess that's a a summary it's probably more complex than

00:33:13 summary it's probably more complex than that but that's the principle is do you do you regulate more and achieve higher standards of safety but in so doing do you make um industry inefficient and non-competitive to what extent did the ideas received by

00:33:25 to what extent did the ideas received by the department through the call for ideas process influenced decisions on amendments to any of the regulations or approved documents specifically in relation to fire safety

00:33:42 i don't think there were many responses in relation to fire safety as i recall um

00:33:46 um as as as my email to sir ken suggests um there was a lot in relation to electrical safety and i subsequently um was heavily involved in a piece of work looking at the electrical safety

00:33:57 looking at the electrical safety requirements in the regulations can we get your statement please page 77 paragraph 202 below a little bit lower down the screen you say in december 2010

00:34:08 down the screen you say in december 2010 the department produced a report on future changes to the building regulations next steps which detailed plans to take forward a program of work to examine a number of areas to develop detailed proposals for consultation the

00:34:21 detailed proposals for consultation the program was to have a particular focus on deregulation and streamlining of the technical and procedural aspects of the regulations in relation to part b the report noted that responses have focused on sprinklers and egress from a building

00:34:32 on sprinklers and egress from a building with peop for people with disabilities in the case of fire and it goes on after that as a result i think you go on to explain that the provisions on means of escape

00:34:43 that the provisions on means of escape for disabled people were kept under review yes is that right yes i don't think we did any work on that right so

00:34:51 right so what do you mean by don't think we did any work on it were they kept under review does that mean you didn't do any work on them

00:34:59 yeah no there wasn't an active piece of work in relation to that at this article so what does kept under review mean um

00:35:06 um i think we may need to turn the page to the top of page 78 if you don't mind yes sorry let's look at that you know the last sentence there says

00:35:15 says um in relation to the egress issue the report stated that the issue would be kept under review does that mean just parked on the desk and not looked at or does it mean constantly monitored i think it means it's something that we look at in in the

00:35:27 it's something that we look at in in the future and and um there wasn't any specific um plans to do any particular work on it at that time now that doesn't therefore seem to have

00:35:38 now that doesn't therefore seem to have presented much in terms of challenge does it it just was parked i guess that's probably a fair um response at that time and is it the case that as i think you say nothing was done

00:35:50 that as i think you say nothing was done on sprinklers because the call for ideas essentially had not produced a cost-benefit analysis which contradicted the analysis the department already had yeah i think those people that had responded in relation to sprinklers had

00:36:02 responded in relation to sprinklers had argued that if whereas the approved document at the time required sprinklers in different buildings in different situations of recommended

00:36:13 of recommended in the guidance that sprinklers were provided in certain sorts of buildings in certain sorts of situations some people had argued that the regulations would be simpler if all if it said all buildings must be sprinklered and you can see yes the rules would be

00:36:25 and you can see yes the rules would be simpler but the cost to the

00:36:27 the the economy would be greater and again it doesn't seem to have been hugely challenging in that those responses on sprinklers were simply noted but not not

00:36:38 were simply noted but not not acted on

00:36:39 acted on is that is that a fair way of looking at yeah

00:36:41 yeah as as um

00:36:44 as as um mr legend said what we were tasked with looking for were things that were um quick wins that could be done easily that didn't require a lot of additional work and would ultimately result in a

00:36:55 work and would ultimately result in a reduction in the cost of regulation were any ideas

00:36:59 any ideas received as a result of this call for ideas in relation to any of the provisions on external fire spread i don't remember so i'd be very much surprised

00:37:10 surprised now before we move on we can see that you in your email to ken knight if we just go back to that clg three zeros 19136

00:37:21 you said that uh giving

00:37:24 uh giving the nic eic responsibility for approved document p would be a bit like letting ronnie king write adb

00:37:34 explaining that it would save the department the costs of drafting but that it would not necessarily be in the best interest of uk plc what do you mean by uk plc

00:37:43 by uk plc um that's a phrase people often use to describe the the success or otherwise of the national economy industry in other words

00:37:54 well its broadest sense is the success of the economy affects all of us so just just to be clear is this right that the interests of the as you put it the national economy

00:38:05 as you put it the national economy would not be served by ronnie king as draftsman because is this right that he would have public safety

00:38:12 safety perhaps in particular sprinklers in mind as a priority rather than the interests of uk plc

00:38:19 of uk plc yeah i mean the nature of developing any policy and safety policy is no different you're balancing um the the

00:38:28 the the costs and benefits of the different options um if you ignore one of those two balances you don't have a balanced policy you have something which one might argue is too expensive yes i

00:38:40 one might argue is too expensive yes i mean look at looking at it was the point you were making in the way you were making it really just saying that it would be undesirable to let somebody who had the

00:38:52 undesirable to let somebody who had the absolute priority of fire safety be responsible for writing the approved document on fire safety if it was absolute they never considered cost yes yes i see

00:39:02 yes i see it would that be the right way around i mean given that the provisions of part b

00:39:07 b and approved document be specifically and entirely directed to the protection of life safety and not to the protection of industry or other any other economic or or commercial interests uh what would

00:39:18 or or commercial interests uh what would be wrong uh with some with letting somebody

00:39:21 somebody not saying necessarily ronnie king but somebody who had life safety as their absolute priority um craft the regulation or craft the approved document the country would be bankrupt

00:39:32 bankrupt would it we'd all starve to death ultimately i suppose if you took it to its extreme i'm not sure that that would happen in practice but that's the the policy conundrum that governments are faced with is

00:39:45 that governments are faced with is you you need to balance the balance the cost of regulation with its benefits

00:39:50 benefits so death by fire or death by starvation and that's for the government to choose between us that's that in its most extreme form and it's mostly i mean i don't think anyone talked about it in those terms but that's that's the that's

00:40:01 those terms but that's that's the that's that's the principle and ensuring that um finding the right balance is what governments have to try and do

00:40:12 yes and the balance point would you accept this the pivot point isn't exactly halfway between the two it would be somewhere between the two as a matter of judgment based on the best

00:40:23 a matter of judgment based on the best information available

00:40:26 yes and there's a political element to that as well i guess which is what um

00:40:31 um well in the case of this particular period of time the government of the day was concerned about the um

00:40:39 um the damage to the economy that had occurred as a result of the financial crisis

00:40:43 crisis and so it was focusing on trying to shift that balance so the industry was freer to um to improve the the economy and possibly adopt

00:40:56 and possibly adopt the slightly lower slightly weaker standards

00:40:59 standards of fire safety if you follow that through yes did the review of the proved document leading to the 2013 amendments involve any

00:41:10 involve any any review of the technical standards

00:41:14 no that wasn't the terms of reference of the work that we were doing right and can we agree therefore that the review didn't lead to any substantive changes to any aspect of the provisions relating to external fire spread in particular

00:41:25 to external fire spread in particular section 12. that's correct yeah with any was any consideration given at all to any amendments to any part of section 12 during that review no don't think so if we go to clg one

00:41:36 no don't think so if we go to clg one triple zero nine one one four here we can see that in the wake of the grenfell tower of fire on the 15th of june 2017 the day after

00:41:47 on the 15th of june 2017 the day after here's this here's an email second email down

00:41:49 down [Music]

00:41:50 [Music] uh

00:41:52 uh from bob ledson to you at 15 15 that afternoon subject re urgent grenfell fire one in three out rule obviously now two outline

00:42:05 three out rule obviously now two outline for media handling by 12 15. brian can you remind what was done in 2012 review bob see that yes now your response is at the top of the chain

00:42:17 response is at the top of the chain we updated a few standard references gave new guidance on wall coverings to avoid unintended consequences of the eu classification system gave new guidance on thermoplastic lighting diffusers and

00:42:28 on thermoplastic lighting diffusers and roof lights which provided a significant reduction in regulatory costs now given the date

00:42:34 the date can we assume fairly perhaps to you that this was written in some haste um yes but it was it does about sum it up doesn't it yes yeah and the changes you refer to in the

00:42:45 yeah and the changes you refer to in the second or third bullet points related i think to an internal fire spread don't they

00:42:51 um yes they do yes and those were am i right changes absolutely yes in 2012 help me with this well the

00:43:02 in 2012 help me with this well the approved documents were under review although

00:43:05 although at this time through a deregulatory lens would it have been particularly difficult or time-consuming to have drafted a definition for the term or phrase filler material etc in 12.7 and included it in the 2013

00:43:19 etc in 12.7 and included it in the 2013 edition

00:43:27 it wouldn't really have been in terms of reference to what we were being asked to do we i guess we could have done it i mean given the history we covered yesterday and today of the drafting and the consultation of

00:43:40 of the drafting and the consultation of 12.7 or rather the absence of it did anybody think now that we've come around to another uh another round of amendments to adb that it might be good and useful

00:43:53 that it might be good and useful to consult on what you didn't consult on last time and at least ask industry what they

00:44:00 what they thought

00:44:01 thought 12.7 meant whether they understood filler in the sense you intended it and in any event perhaps um as a belt embraces exercise to include a definition in appendix e

00:44:14 a definition in appendix e did anybody think to do that no it would have been outside what we were being asked to do at the time so you were being asked to do you were the government no i'm a civil servant

00:44:25 no i'm a civil servant all right uh i'm not sure that's a distinction i'm making here you were part of the executive arm of government uh responsible for the review of adb

00:44:36 uh responsible for the review of adb yes

00:44:38 yes we were responsible for we had the pog we weren't reviewing adb at the time we were looking we were looking for quick wins to reduce regulatory burden in in the building regulations that's what ministers asked us to do so that's

00:44:49 what ministers asked us to do so that's what we did did nobody think to go to ministers and say well look um here is this quite important change we made in 2006 to be honest it was all a bit late did the timing didn't work we put some

00:45:01 the timing didn't work we put some changes in we think they might need to be clarified we just want to put an amendment in by way of clarification or by way of a definition can we do that was that not something

00:45:12 was that not something that you or perhaps your seniors could have had

00:45:16 um

00:45:19 no i mean that that that wouldn't have made sense at the time i mean

00:45:26 there's only so many of us that working on some on a range of different things so we were focusing on what we were being asked to do at the time i mean an additional definition in the glossary in appendix c wouldn't have fallen foul

00:45:37 appendix c wouldn't have fallen foul would have any of the regulatory measures or criteria then in place would it we'd have needed to demonstrate that it didn't add any additional cost and we would probably have only got it into the process if we could demonstrate

00:45:49 into the process if we could demonstrate that it was reducing cost but it wouldn't have added any additional cost or would it if all you were doing was spelling out what you'd always intended from 2006. we'd need to be able to we'd need an evidence base to demonstrate

00:46:00 need an evidence base to demonstrate that one way or another so that would have been

00:46:02 have been a year's work and and so that wasn't really within the scope of what we were being asked to do oh well

00:46:10 well were you not sure were you not sure that people at the time were reading 12.7 the way you were said that there was a risk they might have been reading it differently and therefore a risk that it

00:46:21 differently and therefore a risk that it would be expensive to revert to what you meant rather than what

00:46:25 what it was it wasn't something that we gave any consideration to at all we were asked to find quick wins to reduce regulatory burden and we identified those things that we knew that we we'd be able to do quickly and easily that

00:46:37 be able to do quickly and easily that had a measurable reduction in regulatory burden as it's described

00:46:52 did you or anybody else at this time given what you told us about going back to class naught at the next opportunity given he thought now

00:47:03 now at this point 2012 2013 to removing class naught from diagram 40.

00:47:10 40. um if we had been thinking about class not we would have been considering it in the round and the way it's used throughout approved document b um and and we'd be thinking about the entire classification system i don't think we would have just focused on external wall

00:47:22 would have just focused on external wall construction um so again that would have been a significant piece of work um whereas what we were tasked with doing was finding those things that we could address quickly so

00:47:33 things that we could address quickly so i think the answer perhaps put a different way is you could have done but it didn't fit the instruction yes that's the nature of working in the civil services you get instructed to do something you get on and do it

00:47:44 something you get on and do it did you or anyone else as far as you were aware give any consideration during the 2012 review to bring bringing to an end the parallel operation of the national reaction to fire system regime and the european fire classifications

00:47:57 and the european fire classifications within the approved documents no i think it's what i just said is that that would have been that that would have been out with what we were being asked to do at the time it's quite that's a significant piece of work yes but what was wrong

00:48:09 piece of work yes but what was wrong with suggesting that as a significant piece of work to run alongside the 2013 amendments given that

00:48:17 that um

00:48:19 um class b the euro class had been in for coming on for 11 years um

00:48:26 um in response to this brief that just that wasn't something that would have would have been appropriate and and i imagine would have been rejected you know as at april 2013 when the new edition of

00:48:37 as at april 2013 when the new edition of adb was published do you remember what were the department's plans in respect of bringing to an end the transposition period

00:48:45 period um i don't think there are any specific plans at that point um i think it was something that um

00:48:53 we were aware of was an issue that we needed to consider it it's quite a complex issue um because the way the european classification classification system

00:49:05 classification classification system worked

00:49:06 worked it you needed a lot of different standards in place um for each product um and so the the transposition into the new european system was taken a lot

00:49:18 new european system was taken a lot longer than i think anyone expected when it was first introduced and

00:49:23 and so

00:49:26 so there wasn't an obvious driver to do that quickly um and as i say pretty much the plans that had been put together um

00:49:37 um prior to the financial crisis had been put to one side and the new government had come in and its focus was revitalized the economy um and one of

00:49:48 revitalized the economy um and one of those object one way to do that was to reduce regulation well now you say in that last answer that this was something that you as an issue you needed to consider as of april 2013 when was that

00:50:00 consider as of april 2013 when was that issue going to be considered um i don't think we had a program of a planned program when that would be happened clearly it would be looked at next time we we'd look to approve document b in so far as the the european fire tests were concerned

00:50:11 the european fire tests were concerned so clearly it would be looked at the next time we looked at the proof document b standing as you were in april 2013 when would that have been um i think we did honestly we didn't

00:50:22 um i think we did honestly we didn't know um as i say i think the plan that the future of building control um

00:50:30 um report and and the the response to it that had been been produced had a

00:50:36 had a something along what you might describe as a work plan for the for the the division as how it would approach building regulations in the future that had been either put to one side or perhaps thrown

00:50:47 either put to one side or perhaps thrown away altogether i'm not quite sure which um and so going forward from that point we didn't have a plan about how we were going to approach things right so was the

00:50:58 approach things right so was the position in government so far as you could observe it that the transition period was an eternally enduring state of affairs um

00:51:09 um or to use dr crowder's word extended and extended and extended

00:51:17 i don't think there was a decision one way or the other to to delay or or move it forwards or backwards it wasn't a a question that arose

00:51:29 a a question that arose now we know perhaps moving to a different uh area of some questions i have for you later but we know that in 2012 you commissioned uh and this is before that the latino inquest you commissioned i think

00:51:41 inquest you commissioned i think the seven work streams project yes not one of those seven work streams included anything on external fire spread did it why

00:51:51 why why is that and so that that particular contract um at that time and i was working on when was it 20 was it 2013 so i'd have been working on

00:52:03 was it 2013 so i'd have been working on part p at the time um and

00:52:07 um and i was conscious that in a review we were expecting at that time i'd start a full review a technical review of approved document b in

00:52:16 in fairly soon after that you know within the next couple of years so

00:52:21 so the idea i had was to try and commission some research that would address some of the

00:52:26 the more complex issues that could be considered by a contractor that didn't need much intervention from me so it was a what i was trying to do was get ahead of

00:52:37 what i was trying to do was get ahead of the game

00:52:39 the game um so that when i got to doing the next review of approved document b we already had some some work in hand but why not then given what you told us

00:52:50 but why not then given what you told us this morning about class naught being reviewed next time around why wasn't that on the list of seven work streams perhaps an eighth work stream um i didn't think at the time it was something that i needed to do and that

00:53:02 something that i needed to do and that that kind of research on but but this is i mean why not given that all the history we've been through about class naught uh the contrivance as it's been called we covered that this morning and yesterday given the views about class

00:53:14 yesterday given the views about class naught

00:53:16 naught espoused by the bre and its unreliability for predicting external fast spread why not make it the subject of research

00:53:27 the subject of research and recommendation ahead of the next adp at this point 2012 as part of the seven work streams project um i think

00:53:38 at that time

00:53:43 the work that i was commissioning was mostly about trying to get some technical work done there was some economic work done as well um

00:53:54 i think if we were if we were looking at the the

00:53:59 retiring the bs 476 standards um

00:54:03 um that wasn't the kind of work that was looking to do at that stage it was more this kind of um um

00:54:11 um deeper thinking um and think as i say it was a list of things that i came up with which i thought would get us ahead of the game for the for the next review so they were questions that

00:54:22 next review so they were questions that um myself and i think steve kelly was working with me at the time we came up with um

00:54:30 um my expectation would be that once we got to do a full technical review of approved document b we would commission further research then well why would you do it that way around you've got seven work streams running as research for the

00:54:42 work streams running as research for the next round of adb that you were expecting to have to do at some point you knew class naught needed to be looked at at that point why not just add it to the list

00:54:53 why not just add it to the list um

00:54:55 um i don't know if i didn't think of it at the time or after i did think of it i didn't think was a good idea but it wasn't something that crossed my mind at the time as being the kind of work that i could commission that would run with little intervention from me well you see

00:55:07 little intervention from me well you see um

00:55:09 um it doesn't require does it the retiring of bs476

00:55:13 of bs476 all it requires isn't it is to bring an end

00:55:17 end is bring to an end the transition period so that diagram 40 would simply refer to class b s3 d2 if all i was thinking if my only job was worrying about diagram 40 that's what i would do but i was responsible

00:55:29 what i would do but i was responsible for several approved documents in part but and all of part b well that i understand but and i'm not suggesting that all you you

00:55:40 and i'm not suggesting that all you you your only job was the guardianship or otherwise of class nought but we've seen quite a lot of the history of class north in the decade or say before this time and and what it shows

00:55:53 and and what it shows uh and as part of a preparation for a a review of adb i i just want to understand why it was that coming back to it given that you knew it was something that had to be

00:56:05 knew it was something that had to be addressed wasn't something within the seven work streams but i didn't think it was necessary at the time you do have a tendency to conflate the two issues which is retiring the 476 series which is class

00:56:16 retiring the 476 series which is class null class 1 through to 4 and the other classifications associated 476 and diagram 40 and those classifications are used throughout the approved document so it's a it's a bigger question than just external wall construction

00:56:30 external wall construction yes i'm not suggesting retirement i'm simply suggesting amendment of diagram 40 and it's concomitant 12.6 i think at that time we didn't think that was that that wasn't something that was

00:56:42 something that was on our minds or something that needed needed work very well now can we look back at your witness statement please uh page 14 paragraph 39

00:56:53 now here we can see that you're referring to the period leading up to the formulation of the department's response to the coroner's recommendations uh in may 2013.

00:57:06 and if you look at paragraph 39 last sentence you say this

00:57:12 this that's a full technical review of adb would have to be set against the government's priorities of the day which were deregulation and promoting house building

00:57:22 building now the two deregulatory policies in operation between 2011 and 2013 i think were the one in one out policy which became one in two out and then one in three out and the red tape challenge

00:57:33 three out and the red tape challenge uh including a construction red tape challenge from 2012. is that is that right um i know there was a commitment to reduce reducing regulation on house building as well but i can't remember

00:57:44 building as well but i can't remember when that when that arrived right now looking at the one in one ounce that was is this right an administrative policy as you understood it that operated across government whereby in theory no new regulation

00:57:56 whereby in theory no new regulation could could be introduced without a compensating reduction in regulation also being made that's right and what counted as one regulation for this purpose as you understood it at the time and so the the way the system works

00:58:08 time and so the the way the system works is you is you monetized the annual cost to business of a of a provision and so you would work out for a for a year how much industry you had to pay to

00:58:20 year how much industry you had to pay to comply with a particular requirement and that would be balanced again so so you do that for both provisions and they need to balance out so you you you ended up with a net reduction or a

00:58:31 you ended up with a net reduction or a net zero right and was it your understanding throughout the one in one out and one in two app policies applied to guidance under the regulations including the approved documents yes yes

00:58:42 approved documents yes yes uh and what was the basis on which you understood that to be the case um

00:58:48 um i'm sure it's something we discussed at various points but it's pretty it would be a fairly pointless policy if it didn't impact on the technical guidance support in the building regulations well that's an argument but were you

00:59:00 well that's an argument but were you ever told

00:59:02 ever told it applies or did you ever read a document or an instruction or a protocol or policy that told you that adb or any of the approved documents were subject to these policies um we had a fairly regular

00:59:14 policies um we had a fairly regular interaction with um colleagues in the um business the department for business i can't remember what it was called at the time um and there's a regulation executive there to the team of officials

00:59:26 executive there to the team of officials that deal with regulatory policy right as we would have talked to them about it now

00:59:30 now regulation was defined i don't know if you ever looked at the definition of regulation in the guidance did you ever do that i must have done right let's look at it inq 3015131

00:59:42 page four

00:59:48 if we gave these two inq30s one five one three one

01:00:01 page four and now um there's a heading halfway down your screen what is in scope of r o i o o one in one out uh and the answer is this at paragraph thirteen the regulation is defined as a

01:00:14 thirteen the regulation is defined as a rule

01:00:15 rule or guidance with which failure to comply would result in the regulated entity or person coming into conflict with the law or being ineligible for continued funding grants

01:00:27 funding grants and other apply for schemes um

01:00:32 um did you read that or were you familiar with that language at the time um i think i was um and that to me includes approved documents to me you say includes a proof document

01:00:46 to me you say includes a proof document how did you understand that that applied to the guidance in approved document b

01:00:54 well approved documents um have um have a statutory basis which is set out in i think section seven of the building act um

01:01:03 um and so

01:01:05 and so um

01:01:06 um they're often described as de facto regulation in that whilst it's not a written a statutory instrument what you write in an approved document has an impact on on the way the industry

01:01:17 has an impact on on the way the industry behaves and what it needs to do which it clearly does right as you tell us i think in your statement of course the approved documents aren't

01:01:28 of course the approved documents aren't mandatory are they no the the their status is set on section seven of the building act compliance when the proof document is evidence tending to um

01:01:39 evidence tending to um negative liability uh and and the alternative is true if you don't follow them you know so in pr in practice the approved document has an impact on on the industry

01:01:51 on the industry has a regulatory impact so did it come to this that you understood the expression failure to comply would result in

01:01:59 result in the regulated entity or person coming into conflict with the law as

01:02:04 as including um becoming subject to a negative presumption of compliance yes i mean this is this isn't a new thing i mean we've been working with um better regulation policy

01:02:16 working with um better regulation policy all the time i'd been working in the department and we'd always and and the content of the approved documents was always included in that can i take it that you at least to your knowledge

01:02:27 knowledge you and your to your knowledge the department never took any legal advice about whether approved document b was subject to the regula the one in one out regulation or policy um we wouldn't take legal advice because it's not it's not

01:02:39 advice because it's not it's not statutory is it this is this is um this is government policies you discuss it with a policy team and the policy team would have confirmed that they expected the approved documents to be covered did you have such a discussion with the policy team i don't remember for sure

01:02:51 policy team i don't remember for sure but i thought we probably did can we look at your statement please at page 87 and within that page paragraph 235 and you say this on

01:03:02 on 16th july 2013 secretary of state eric pickles wrote to nick clegg mp and vince cable mp seeking clearance from the home affairs committee and the economic affairs reducing regulation subcommittee

01:03:14 affairs reducing regulation subcommittee to consult publicly on the results of the recent review of building regulations and housing standards the pro forma for the request was included i note that the secretary of state includes a line in his letter that

01:03:25 state includes a line in his letter that housing standards are not within the scope of the one in two out system i'm not able to say what the secretary of state meant by housing standards but as i have said out above it was my understanding that building regulations

01:03:36 understanding that building regulations were within the scope of one in two-out system

01:03:41 system now let's go to the letter that you refer to there um you can see it it's clg 3019227

01:03:52 you can see you refer to it there if you go to that you can see the date on page 1 16th of july 2013

01:04:00 and if we scroll down to page it's to vince cable and nick clegg not in that order and if you go down please to page three and the third paragraph up from the

01:04:12 and the third paragraph up from the bottom of the page you can see um that eric pickles says this this is a red tape challenge measure and i'm advised that housing standards are not within the scope of the one in two out system but despite that my department

01:04:24 system but despite that my department has prepared an impact assessment which i attach and intend to publish now bearing in mind that this letter sought clearance for a public consultation on the recent review of the building regulations and housing

01:04:35 building regulations and housing standards

01:04:38 do you know which officials would have drafted this letter or advised on whether or not housing standards did fall within the one in one out measures

01:04:47 probably richard harrell um might have been somebody in the planning director as well right what about you um no

01:04:57 the subject of the letter which i'm afraid i admitted to show you page one that i can tell you is rationalization of the framework of building regulations you wouldn't have had a hand in this letter uh i don't think so i mean i was involved in the housing standards review

01:05:08 involved in the housing standards review but um

01:05:10 but um not not in its sort of um leadership if you like did you see this letter at the time do you think

01:05:20 i might have done did was there a question mark in your mind about what was meant by housing standards

01:05:28 i'm thinking about the the context of this letter um it's probably talking about those

01:05:36 those standards that local authority imposed on house builders through the planning system

01:05:42 system um and a big part of the housing standards review was to try and reduce um the impact of those wherever possible and i think they weren't included in the one in two out system because the way

01:05:54 one in two out system because the way the planning system worked right did anybody in your department seek advice about what about whether or not the building regulations which of course are the subject of this letter as well as housing standards were

01:06:06 letter as well as housing standards were within the scope of the one in one out policy and it was very clear to us that it was included in the one in to that policy

01:06:13 policy clearly you from what from from its inception no but from what evidence from what advice um

01:06:23 i i can't recall at the time but it it was

01:06:26 was it was fundam fundamental to the to the work we were doing did you or anyone else in the department to the best of your recollection consider applying for an exemption for the building regulations

01:06:37 exemption for the building regulations from the one in one out and later one in two out and three-hour policies i don't think we'd have been able to justify that was that um

01:06:45 um it's a in important piece of regulation government was trying to reduce regulation right so you basically wave the white flag before entering the battlefield um it's not civil servant's job to

01:06:58 um it's not civil servant's job to confront the government confront government policy it's their job to implement it is it not also a civil servant's job to advise government on what's safe

01:07:09 where appropriate yet was this not an example

01:07:16 i don't think so it was clear the government um was trying to reduce regulatory burden um we didn't set out none of the things we did in my view reduced the level of safety and but they

01:07:29 reduced the level of safety and but they reduced the the cost of regulation now the red tape challenge that was a cr just correct me if i'm wrong mr martin that was a cross-government policy designed to crowdsource views from

01:07:41 designed to crowdsource views from industry

01:07:42 industry businesses organizations and the public about which existing regulations in the stock of existing regulations should be improved kept or scrapped yes yes and after that the government and cabinet office would identify areas of

01:07:54 cabinet office would identify areas of work to deregulate yeah it was it was enormous cross-government project yes and that was in operation between 2011 and 2014 or 15 perhaps that sounds about right i can't remember were you aware

01:08:05 right i can't remember were you aware that the rro the regulatory reform first safety order 2005 was expressly excluded from that process by ministers in 2012 uh yes it was exempted from the the red tape challenge i think

01:08:16 tape challenge i think one of the arguments that is that they'd only recently completed um a review of its

01:08:22 its the enforcement processes and so the point that we're making is that there was there was nothing left to to achieve from reviewing it again right

01:08:35 did you understand it to be exempt on the basis that it was an essential life safety measure or because it was part of some earlier earlier to regulatory drive i think that i think that the main argument was that it already been

01:08:46 argument was that it already been subjected to an exercise and things like one in one out

01:08:51 out and so on would only really um arise if there were proposals to um

01:08:58 um change the provisions in some way which they weren't well that that is is great circular it was exempted from the red tape challenge which mean which meant that if there were changes which were needed they could happen no is that wrong no i think they're two separate

01:09:09 wrong no i think they're two separate things right i see

01:09:14 did you or anyone else in the department consider applying for an exemption for the building regulations from the red tape challenge process uh no and why not um

01:09:26 uh no and why not um i don't think it would have been it would that we didn't really have a strong argument for doing so well how about life safety being a strong argument for doing so um building regulations covers a wide range of

01:09:37 regulations covers a wide range of different things in terms of the red tape challenge it was looking for to reduce unnecessary what i think the government would have considered unnecessary burden so arguably if we if there was a provision which was

01:09:49 if there was a provision which was going to be reduced which would have a negative impact on safety then i think the government wouldn't have supported that

01:10:02 we're going to turn to something different now um but we're going to stay more or less where we are in the chronology uh and we are in the chronology in 2013

01:10:14 uh and we are in the chronology in 2013 uh and i want to come back to the topic we were on before which is 12.6 and 12.7 of adb and this is a topic we are now going to be on

01:10:24 be on covering a number of years uh for the next um few days of your evidence if that's all right with you mr martin um

01:10:32 um in your statement if we can go to that please at page 54

01:10:37 you say this at paragraph 155

01:10:45 you say this there were certainly concerns raised about the testing of cladding products including acm panels and insulation materials during the period 2009 to the 14th of june 2017 and

01:10:57 period 2009 to the 14th of june 2017 and i was aware as with senior officials within the department of the issues regarding the testing of such products however within the context of the system of building regulations in england it was my view that relevant industry

01:11:09 was my view that relevant industry bodies were taking appropriate steps to produce guidance and ensure that the functional requirements of the regulations particularly requirement b4 were being met where i was able to i tried to assist the industry during the period in

01:11:21 the industry during the period in question drawing on my knowledge from both my time in the department and of bre previously now looking at what you say in line one of that paragraph

01:11:32 of that paragraph what were the concerns specifically that were raised about the testing the testing of cladding products in that period

01:11:43 i think i think i've picked that particular period because that's the question that the inquiry had asked me um

01:11:49 um i think

01:11:51 i think following the 2006 um amendments it probably wasn't until i'd been contacted by it was until something like 2013 2014 where before

01:12:03 something like 2013 2014 where before questions were being raised with me about how that guidance should be applied

01:12:11 well what were the concerns that you say was certainly raised about the testing of cladding products in that period including testing of acm panels and insulation materials um

01:12:22 insulation materials um in preparing for for giving evidence of look back over um various documents and i think it was either 2013 or 2014 that bre contacted me and contacted me and had a question about how to apply

01:12:35 had a question about how to apply um whether something was a filler or not in in terms of we'll come to that yeah we'll come to that that's november 2013 tony baker at the bre in his question yes which we'll come to but i'm

01:12:46 question yes which we'll come to but i'm just interested in the period 2009 to the date of the grenfell tower of fire

01:12:52 of fire that's that eight year period you say there were certainly concerns raised about the testing of cladding products including acm panels and insulation materials and i just wanted to know what those were what were those concerns about the testing

01:13:04 about the testing i'm using testing in a very general way i think in in this point here and i think as i say the the first one i'm aware of is the is the email from tony baker well okay there's not exactly jump

01:13:15 baker well okay there's not exactly jump from the line does it because that starts in 2013 what was it what happened then during the period 20 2009 to november 2013 by way of concern about the rate about the testing of

01:13:26 about the rate about the testing of cladding products as i recall very little it wasn't an issue that came across my desk particularly um during that period i was focused on um

01:13:37 during that period i was focused on um other reviews i think when i joined the department i was working on a review of part j the regulations and as we were just discussing i then moved on to doing some work on part p

01:13:48 moved on to doing some work on part p and the housing standards review and and um

01:13:51 um the red tape challenge so that was that swallowed up quite a lot of that time um and up until about 2013 i didn't really get come across the issue of

01:14:02 come across the issue of of

01:14:03 of the application of section 12 of the approved document as being

01:14:09 being an issue

01:14:12 and you go on to say and i was aware as with senior officials within the department of the issues regarding the testing of such products well what issues were senior officials in the department aware of during the period

01:14:24 department aware of during the period 2009

01:14:25 2009 to the 14th of june 2017 on that topic i mean this paragraph is a summary of other things they're in there in my statement um and um i think what i'm referring to here is is when um

01:14:38 what i'm referring to here is is when um following a meeting in 2014 um i'd contacted the nhbc they'd reported that they'd been

01:14:52 they'd been approving buildings on the basis of a um agreement certificate which they subject which subsequently changed um and they were concerned that um

01:15:04 um that

01:15:05 that made the decisions they'd made in the past might not be right um and i brought that to the attention of um richard harrell and bob litton i see these are all matters that occurred which we will look at in detail after november 2013 aren't

01:15:18 at in detail after november 2013 aren't they yes so prior to that i didn't the the question of external wall construction was not something that was prominent in in my in my work now when you refer that relevant industry bodies

01:15:29 you refer that relevant industry bodies taking appropriate steps to produce guidance

01:15:32 guidance what are you referring to there um

01:15:35 um nhbc

01:15:37 nhbc building control alliance and cwct

01:15:44 and do you count all those pieces of guidance as appropriate steps you you count those do you as amongst the appropriate steps relevant to b4 yes

01:15:57 now you may know that nhbc regarded the bca guidance as guidance only for their customers so only for

01:16:03 only for only for building control alliance customers

01:16:06 customers did you see it the same way that the bca readership was limited to the building control alliance is is all approved inspectors and all local authorities so that's all regulated

01:16:17 authorities so that's all regulated building work isn't it it's it's building control yeah not designers there

01:16:24 you just said bca customers when the customers would i think well certainly nhbc would regard their customers as being the builders yeah i see all right now as far as you're aware before

01:16:36 now as far as you're aware before issue naught which is the first issue of the bca technical guidance note 18 in june 2014 other than the two pieces of cwct guidance that's the 2008 standard and

01:16:50 guidance that's the 2008 standard and technical note 73 from march 2011 was there any other industry guidance on complying with the functional requirements of b4 issued by industry bodies

01:17:05 i know that there were changes to um british standards nine and triple nine one um i think they would have been post 2015 though they were in 2015.

01:17:17 were in 2015. leaving all that on one side was there any industry guidance before bca technical guidance note 18 issue not in june 2014 other than the two cwct not

01:17:29 june 2014 other than the two cwct not that i'm aware of that now in your statement here on the screen you say that it was your view that quotes relevant industry bodies were taking appropriate steps to produce guidance and then you say and ensure

01:17:41 guidance and then you say and ensure that the functional requirements of the regulations particularly requirement before were being met what were those steps what were the steps that they were taking

01:17:55 i guess i'm principally thinking about the guidance but certainly i recall nhbc carrying out a review of the projects that they dealt with to ensure that they were

01:18:06 to ensure that they were getting it right

01:18:11 did you during the period 2009 to the date of the grenfell tower fire think that it was the responsibility of industry bodies such as

01:18:21 such as the nhbc or the bca or or the cwct to take steps to ensure that the functional requirements of b4 were being understood and met

01:18:32 i think that partnership between the department and and industry bodies has been something that's long established that the department relied on that

01:18:44 what was the basis

01:18:47 for your thinking that responsibility fell to industry organizations

01:18:55 uh most of those industry organizations that's one of their reasons they're established is to is to promote good practice in their in their sector did it occur to you that if industry bodies had to produce their own guidance

01:19:07 bodies had to produce their own guidance or guidance about the guidance there was something wrong with adb which was of course itself the official government guidance no i think that's something that was quite common right across the building regulations what did you think was the

01:19:19 regulations what did you think was the point of guidance about guidance

01:19:24 construction is a very complex subject the approved documents tended to set out

01:19:31 set out high level guidance but different sectors of industry would produce standards or

01:19:39 trade body guidance to try and help their members address the issues that were specific to their particular activity if you grouped that all into a single document it would be enormous

01:19:50 document it would be enormous well the particular activity that taking building control being a pretty broad activity

01:19:58 did you not think that if industry had to

01:20:01 to interpret or explain your guidance industry for example being building control there might be something wrong with it

01:20:12 no i mean that's something that had been happening all the time i'd worked in building control they'd always been

01:20:19 right back when when i first started working as a building control officer there were documents produced by what was then the district surveyors association which helped building control officers

01:20:30 helped building control officers interpret the building regulations but wasn't it

01:20:33 wasn't it help me with this wasn't it the government's responsibility indeed in the end your responsibility mr martin to make sure that the public picking up adb for whatever reason

01:20:45 picking up adb for whatever reason understood exactly what was required in order to follow the government's official statutory guidance rather than leaving it to industry or particular sections of it to interpret and articulate

01:20:57 and articulate the government's intention by producing guidance

01:20:59 guidance about the guidance i can see why somebody might desire that but that was never the case all the time i've ever worked in building regulations there's always been industry guidance that supplemented the building regulations

01:21:10 supplemented the building regulations guidance well you say there always has been in fact isn't it right that until this united of technical guidance note 18 in june 2014 the bca and nhbc it got

01:21:21 18 in june 2014 the bca and nhbc it got on perfectly well without it

01:21:25 i'm talking generically as i say since i joined building control there's always been industry guides that we've used to supplement the building regulations on a wide range of subjects so the idea that

01:21:37 wide range of subjects so the idea that a trade body is producing some more guidance

01:21:39 guidance um

01:21:41 um isn't in of itself a problem

01:21:46 did you consider that it was government's job to ensure that those using the guidance in adb understood what the government intended by its provisions um

01:21:55 um my view is that we needed some something that i i'd been working on at various points during that period we needed to try and improve the quality of the approved documents that was

01:22:06 of the approved documents that was something that i think was a an opinion that mr harold and i certainly shared is that which is why we progressively developed the new house style for approved documents to try and improve the quality

01:22:17 documents to try and improve the quality of the guidance we gave and the work we did on with plain english editors and so on was always was intended to try and improve the quality of that but i think whatever

01:22:28 the quality of that but i think whatever we'd have done there would have always been supplemental guidance produced by trade bodies did the department in any way rely on the guidance produced by industry

01:22:36 industry itself during that period

01:22:43 i'm not sure if i understand the question can you rephrase it yes i mean you referred earlier to a partnership between the department and these industry bodies i mean to what extent did the department rely on these industry bodies to produce guidance which clarified or supplemented or

01:22:56 which clarified or supplemented or answered questions which had been left behind by the guidance that your department produced um i think that was kind of a bread and butter part of the work that we did why would it need to be why would you why

01:23:08 would it need to be why would you why would the statutory guidance be so unclear or imp or imperfect or incomplete that you had to rely on industry bodies uh guidance about the guidance to fill the fill in the gaps um

01:23:19 guidance to fill the fill in the gaps um i i guess there's a number of factors to do with that one is that we didn't review the approved documents as often as perhaps i think we should have done um

01:23:28 um but that was a matter of

01:23:30 matter of available resource and the the way that the system was structured

01:23:36 and it's nigh on impossible to try and write a book that tells you everything you need to know about constructing a building properly it's it's

01:23:45 it's an incredibly complex subject matter did you consider that guidance produced by industry in some way discharged the department's obligation or responsibility to update

01:23:56 obligation or responsibility to update and

01:23:57 and amend the guidance in the approved document particularly when it became clear that it was unclear in any respect um if you're talking specifically about the building control alliance guidance in

01:24:09 building control alliance guidance in relation to external wall construction then i think to some extent i saw that as a short-term solution to a problem that had arisen well we'll come we're going to come back to that but i'm not i'm not talking about that i'm talking in broad terms did you consider that the

01:24:22 in broad terms did you consider that the guidance produced by industry at any time in some way discharge the department's responsibility to update and amend the guidance and approve document in any approved document i'm not sure i ever thought about it in

01:24:33 i'm not sure i ever thought about it in those terms i think it was something it was a normal part of our workers as policy leads to try and work with the different industry bodies to

01:24:44 to help them help their members achieve

01:24:48 achieve the the outcomes that the regulations were designed to achieve i mean to what extent did you rely on your own mind upon

01:24:54 upon these organizations as it were coming to the department's rescue so that where you perceive that there might be a gap or a lack of clarity in a particular provision

01:25:03 provision you could rely on those industry bodies to make to put it right um

01:25:08 um i suppose a way of approaching that question to say what would have happened if none of them did and i think i think there would have been a really big problem bigger bigger than the one we're dealing with now

01:25:19 so so i i guess the answer to your question is yes the department did rely on industry bodies to

01:25:25 to help in achieving the objectives of the regulations and would it be fair to say that you in the period 2008 from when you became full-time at the department until the date of the

01:25:36 the department until the date of the grenfell tower fire considered that the organization's producing guidance cwct and hbc the bca booth murray were reputable reliable and reputable organizations

01:25:50 reliable and reputable organizations certainly the trade bodies i worked with yes

01:25:53 yes and would you expect or would you have expected that the guidance issued by these organizations would have been written by knowledgeable and experienced professionals yes often i'd expect most of them to be more

01:26:04 i'd expect most of them to be more knowledgeable about that specific subject than i was and and as the government's principal construction professional from 2008 with responsibility for a proof document b did you ensure that you read or reviewed

01:26:16 did you ensure that you read or reviewed all such guidance i don't think that would have been possible i reviewed the guidance if it was brought to my attention and very often the various trade bodies would contact us and talk about work

01:26:27 would contact us and talk about work that they were planning to do and we'd discuss um

01:26:31 um you know try to influence them in a way so that we so that it would be effective in delivering the objectives of the regulations but that would depend upon them sending it to you and asking for your views was there a system within the department

01:26:42 the department uh to make sure that you kept tabs on what publications they were intending to to put out which gave guidance about the guidance uh no why is that but there was i mean

01:26:53 but there was i mean i'm not responsible for setting up systems for the management of the entire uh regulatory system but i don't think it would have been practical to do so anyway it would have been very resource-hungry well it depends i mean how many of these trade bodies are there

01:27:04 how many of these trade bodies are there that will produce guidance we've counted nhbc bca cwct

01:27:11 are there any others for each for each function requirement there's probably dozens right i'm thinking about fire safety particularly yeah well i didn't have that luxury i was working on um anything up to four or

01:27:23 was working on um anything up to four or five different parts of the regulations at different points in my time did you consider that there was any role for you or

01:27:28 or for the department in general in checking industry guidance checking it was accurate um i think we'd always have to be careful um in that um we very often couldn't actually endorse

01:27:41 we very often couldn't actually endorse a particular piece of guidance so um we didn't have a we would try and contribute helpfully but the

01:27:50 but the the position would be is that each body would be responsible for the guidance that it produced for its members

01:27:57 members so we would try and help and contribute sometimes facilitate where um i certainly remember in the past where a body would say we're thinking about looking at this subject and i

01:28:08 about looking at this subject and i might say to them actually so is another organization you might want to talk to each other um so we try and facilitate that but we didn't have the the time or resources

01:28:19 we didn't have the the time or resources to be directly involved in all of it you say you couldn't endorse a particular piece of guidance what about the opposite what about um condemning a piece of guidance

01:28:33 um

01:28:36 i don't recall that that issue ever arising and we wouldn't have had a mechanism to do that so that would have been quite difficult to do and what if for example a trade organization produced a piece of guidance that not only plainly

01:28:49 guidance that not only plainly misunderstood a provision in approved document b to do with fire safety but proposed a way of complying with the proof document be that was plainly and obviously downright dangerous what would have happened to

01:29:00 dangerous what would have happened to the department to just let it lie or would you have intervened i think we'd have tried to intervene in some way but we wouldn't have had any direct statutory power to do so

01:29:12 did you during this period 2008 to the 14th of june 2017 understand guidance issued by industry to have the same status and authority as the guidance issued by the department

01:29:24 the guidance issued by the department in the approved documents um that wouldn't have the same status as an approved document that's that's set out in the building act right so they had a lower status did they

01:29:35 had a lower status did they i guess so i mean i think when courts look at these things they often look at what's best practice in the industry at the time and so they would look at that kind of thing so it would have some legal status i suppose um that's not an

01:29:48 legal status i suppose um that's not an area of law i'm an expert in did you at the time understand the guidance issued by these various industry bodies to have the same

01:29:55 the same breadth the same reach in terms of audience or readership as the guidance issued by government

01:30:04 um i think a lot of it would would do um certainly

01:30:07 certainly i mean some of it would be targeted at people that worked in a particular sector um

01:30:12 sector um and to some extent might have had a better reach because it would have been drafted in terms that they were more familiar with and look would have been drafted with that particular sector in mind

01:30:26 and looking at the last sentence of paragraph 155 of your statement you say that when i was able to i try to assist the industry in what circumstances were you not able to assist the industry

01:30:38 to assist the industry um there was only one of me i couldn't be at all of the meetings all of the time um certainly there were times when um

01:30:47 certainly i think um that the drafting of bs triple nine one um i missed a lot of the meetings because they clashed with um whatever else i was working on at the time so i didn't go to

01:30:58 working on at the time so i didn't go to as many of those meetings as i would have preferred now let's go to january 13 and mr turner again ipswich borough council can we please go to clg

01:31:10 borough council can we please go to clg 3019193

01:31:18 uh we looked at some correspondence that you had with him in the june of 2013 this is earlier in the year january 2013 and if you go to page two we can see an email from daniel turner to you at 3 11

01:31:31 email from daniel turner to you at 3 11 in the afternoon on the 21st of january 2013. now it's not a very big print but if you we can i think yes dear brian you see that yes my email

01:31:42 yes dear brian you see that yes my email system is advising me that your email address is no longer valid etc that's how it starts and then it goes on we're currently working on a multi-block multi-story housing development ranging from a six to ten story concrete and timber frame

01:31:54 to ten story concrete and timber frame blocks

01:31:55 blocks the architects and contractor are proposing to utilize kingspan's sips which are effectively a section of pir insulation sandwiched between two sheets of osb

01:32:07 sheets of osb we've assessed all of the unprotected areas etc with the architect and due to the high degree of compartmentation they can effectively have 100 unprotected areas the sips panels are to be clad

01:32:19 areas the sips panels are to be clad internally with plasterboard and externally with different cladding materials such as brick rain screen clouding and possibly render however a query has been raised by kingspan in that they are unable to prove that their

01:32:30 that they are unable to prove that their sips panels meet with the provisions of paragraphs 12 point i think i should be 12.5 to 12.7 of adb volume 2 and bs8414 part 1

01:32:41 12.7 of adb volume 2 and bs8414 part 1 2002 or bsa414 part 2 2005 as they are not formed from materials of limited combustibility this is the first time we've utilized these panels on developments over 18

01:32:53 these panels on developments over 18 meters and we are unsure as to whether this paragraph is applicable to this type of construction or if it was intended for an alternative system

01:33:01 system such as where a thin coat render is placed directly onto insulation which is fixed to the frame presumably if this paragraph is applicable to sips panels then this would prohibit their use in

01:33:12 then this would prohibit their use in this instance unless a manufacturer can produce one which is of limited combustibility and if we go up to page one i've read all that to you because it contains quite a lot but if we go to page one you can see your response at 1531

01:33:25 can see your response at 1531 on the same day so um

01:33:28 so um exactly 20 minutes later and you write as follows

01:33:34 hi daniel i'm still here or at least i think i am i'll get back to you on this are the panels just in phil or are they structural why did you ask him that question

01:33:50 i think he's talking about sips which are often used as a structural panel as well as um an infill so i think i was just trying to get a better understanding of the construction and sip stands for what

01:34:01 construction and sip stands for what um i think it's structural insulated panels but they're not always used structurally right what difference would the answer to the question have made as to whether or not the panels would comply with the guidance in approved document b

01:34:12 document b particularly the paragraphs he's referring to

01:34:17 i'm not sure it's relevant to the paragraphs he's referring to but perhaps i was trying to get a better understanding of the building right why did you need to as you put it get back to him was the answer to his question

01:34:28 was the answer to his question not immediately obvious to you i was probably busy doing something else right i see now in january 2013 we're insulating panels with a pir polyissay sinuate core

01:34:40 polyissay sinuate core um permitted for use over 18 meters by the provisions of adb or were they not

01:34:48 um it it's a an insulation that's not material a limited combustibility so i think the answer is no the answer is no isn't it yes yes

01:34:59 isn't it yes yes and was that not the obvious answer to the question by reference to 12.7 which he had actually raised

01:35:12 um yes i think so why didn't you simply tell him that i was probably busy doing something else it looks like i've responded quite quickly um might even have been using a mobile telephone or something i might have been out of the office

01:35:24 have been out of the office let's move on up the chain

01:35:30 uh he comes back to you uh

01:35:33 uh a little bit later that uh after one afternoon ten minutes later hi brian glad to see you're still with us

01:35:42 us he says the panels are only for infill between the concrete frame and i believe the same is going to occur on the timber frame they will provide support to the external cladding system i.e brick ties or angle sections to

01:35:53 i.e brick ties or angle sections to support the rain screen in conjunction with the structural frame look forward to your response it's causing us a few headaches at the moment and you see that yes

01:36:05 and you see that yes again just how is the information that he provided to you relevant to any answer that you might provide to the question he'd asked um i'm

01:36:15 um i'm not sure it isn't looking at it i can't see why i needed to know whether they were structured or not but i obviously had something in my mind at the time right and if you go to the next email up in the chain we can see that

01:36:26 see that you forward it to stephen kelly about

01:36:31 about 12 minutes later the same afternoon with with one word thoughts question mark

01:36:37 mark now in january 2013 i think is this right steve kelly was your junior assistant

01:36:43 assistant um

01:36:45 um he i was his line manager um we had a

01:36:50 a broad work program he was responsible for some things directly um so assistance probably a strong term uh

01:36:58 uh all right

01:36:59 all right but you were you were his boss yes yeah

01:37:03 yes yeah and um does that tell us that he was younger than you

01:37:08 um i think he was but he would

01:37:11 he would knew were in the job yeah the job will do um why were you asking steve kelly for his thoughts

01:37:18 i was probably getting him to draft a reply i guess we don't say that you say thoughts which is we're asking him for what he thinks no not can you please draft a reply

01:37:29 draft a reply i haven't got time um

01:37:32 um that might be what i meant um it's a single word message so might again it might well be that i was using a mobile telephone but were you not able to answer this question without asking steve kelly for

01:37:44 question without asking steve kelly for his thoughts

01:37:47 um i would have been able to answer it um i probably wanted steve to do it so that i could do something else um if we look up the chain because it continues he comes back to you

01:37:58 you a few minutes later and says i'll have a little look and chat tomorrow afternoon or something question mark and then you at the top of the chain a few minutes after that say

01:38:09 few minutes after that say cool beans the ad needs to be read two or three times

01:38:14 times to work out what it means what did you mean by that um i think we as as with all of this guidance you need to read it carefully

01:38:25 well you had a few minutes ago given me an answer

01:38:31 answer which is the 12.7 basically required in the installation to be of limit of limited combustibility so it couldn't be used

01:38:38 used why was it necessary to read the approved document two or three times to know that i think it's fit over the last four years i've been looking at that paragraph almost every day um at that time we'd have been working on a wide range of different things does that tell

01:38:50 range of different things does that tell us that at the time if you'd simply got adb off the shelf and looked at it you would not easily have been able to work out a clear and simple answer as this email i would suggest to you suggests i think you'd want to read it

01:39:01 suggests i think you'd want to read it just to make because a building control office is asking you a question so they've clearly read it um and um you'd want to give a considered reply yes i mean you it's appear in january

01:39:12 yes i mean you it's appear in january 2013 that paragraphs 12.5 to 12.7 of the approved document needed to be read two or three times for their meaning to become apparent even though you'd written them

01:39:23 even though you'd written them um well i'm saying that to mr kelly um because it's good practice to be careful when you're reading reading and writing these things why is it that these provisions had to

01:39:34 why is it that these provisions had to be read two or three times to answer what appears with great respect to be an extremely straightforward question about whether or not combustible sandwich panels with a pir core could be used in the external wall construction over 18 meters i i

01:39:46 wall construction over 18 meters i i honestly can't remember what was going through my mind at the time um we'd get quite a lot of queries like this from from on a wide range of subjects

01:39:57 on a wide range of subjects and

01:39:58 and it's probably just a throwaway comment well did it not alarm you that a provision that you had drafted and had taken care over drafting as we've seen late though it was in the day back in 2006 now had to be read two or

01:40:10 back in 2006 now had to be read two or three times to produce a clear answer and a clear answer moreover to a question raised by an area building control surveyor in a built in a local

01:40:21 control surveyor in a built in a local authority

01:40:23 authority i think that tended to apply to nearly every aspect of the building regulation so i wouldn't have considered that to be particularly unusual um each project throws up different questions

01:40:34 questions and

01:40:35 and you think you know the guidance off by heart and you go back and read it again and you think actually i think it means something else you need to take your time over these things well it's hopeless isn't it this is approved this is an approved document intended to

01:40:47 is an approved document intended to provide clear guidance to people carrying out the work so that they know with precision and clarity what it is that if they use it would at least part of the way satisfy presumptively the functional requirement

01:41:01 presumptively the functional requirement i mean this isn't the old testament people i mean it is a very complex subject and and we're picking you focusing on one you know a couple of paragraphs we had several approved

01:41:13 paragraphs we had several approved numerous approved documents numerous queries

01:41:16 queries thousands of different buildings with different questions arising so um

01:41:22 um taking time to have a look and try and give a considered answer to a question from a building control officer seems fine to me i don't think this this wouldn't have been evidence to me that there was something fundamentally wrong with the

01:41:33 something fundamentally wrong with the guidance it would mean building regulations gets a bit complicated sometimes which is um something i've been living with most of my career

01:41:45 mr chairman is that a convenient moment

01:41:49 uh yes i think it's time you had a break i was going to suggest that if you haven't suggested it yourself so um mr martin will have a break at that point uh we'll come back please uh 20 to four

01:42:01 uh we'll come back please uh 20 to four and as before i have to ask you not to talk to anyone about your evidence or anything to do with it while you're out of the room all right yes sir thank you very much would you go to the option then please

01:42:20 thank you very much just a minute 20 to 4 please thank you

02:00:24 hey

02:00:28 yes mr millet if you're ready would you and ask the usher to bring mr martin back in please yes mr chairman thank you uh can we please have mr martin back into the hearing room thank you very much thank you

02:00:50 all right mr martin ready to carry on yes sir

02:00:54 yes sir thank you very much yes mr miller when you're ready thank you um mr martin i'm now going to come to uh the email run that you referred to earlier this afternoon and your evidence with tony baker of the bre in november 2013. can

02:01:07 baker of the bre in november 2013. can we go please to clg one triple zero five eight nine five uh and i'd like to look at page two in that email run please at the foot of that page

02:01:18 that page and uh

02:01:19 and uh you can see that

02:01:23 yes thank you you can see that this is an email from tony baker bre to you copy to sarah colwell and stephen howard both of the bre on the 25th of november 2013 subject adb clause

02:01:34 subject adb clause 12.6 and 12.7 and i'll read it all to you hi brian i hope you're keeping well i hope you can help with the following we are seeking seeing an increasing number

02:01:46 are seeking seeing an increasing number of inquiries in which we are being asked for our opinion stroke interpretation of diagram 40 and adb b4 clauses 12.6 and 7 in relation to the buildup of systems

02:01:57 in relation to the buildup of systems using board finishes and we would like to reach a general understand that's what it says so we can respond to all parties in the same way first bullet point systems with board

02:02:08 first bullet point systems with board type outer layers the boards are typically 15 to 20 millimeters thick and achieve bs3 d2 second bullet clause 12.6 guidance references diagram 40 in relation to the

02:02:19 references diagram 40 in relation to the classification of the finish which will be acceptable over 18 meters as being bs3 d2 the 12.7 talks about insulation or filler materials which make up the wall being limited combustibility

02:02:30 wall being limited combustibility third bullet as the minimum maximum surface finish is not defined a debate has opened up within the industry as to whether or not the boards can be called the finish or the filler

02:02:43 called the finish or the filler based on our experience from the original pii program we would suggest that the definition of a s of the surface finish thickness and quotes filler unquotes would assist in clarifying this point and would be

02:02:54 clarifying this point and would be therefore grateful for your thoughts now how do you have you previously been aware that the bre was receiving enquiries on this subject no

02:03:03 no so did this come as a surprise to you um but it was new to me yes news

02:03:10 news surprising news um

02:03:13 um as i say

02:03:15 as i say questions arise about the application the regulations all the time so it wouldn't have been surprising that uh uh

02:03:22 people in the industry were debating what a piece of the regulations may or may not

02:03:27 may not maybe but we're talking about the very provisions that you examined in detail and

02:03:32 and reconstructed and drafted yourself in uh november and december 2006. did it come as a surprise to you that here was here were quarters of the industry filtering through to bre a

02:03:44 industry filtering through to bre a question about what they meant well i've been involved in drafting all

02:03:48 all to some extent all of that approved document and several others by that point so queries about them was not an unusual thing but this was the first time somebody had raised a question about

02:03:57 about 12.6 to me at that time do you know from whom those inquiries had emanated no did you ask no why not um

02:04:07 um i don't think i saw the need to now if you go to the top of page two to the next email in the same chain page one your response we can see um which is sent

02:04:19 um which is sent just over half an hour later at 1547. hi tony i see where you're coming from the problem we have with class b is that you can have a thin surface that

02:04:30 is that you can have a thin surface that gives you the performance and back it with something less desirable so there's no such thing as a class b material quote unquote the word filler was introduced because of a particular incident where a polymeric foam was used

02:04:41 incident where a polymeric foam was used to keep an aluminium panel stiff the foam was not used for thermal reasons so it wasn't quite insulation close quotes it still burned of course exclamation marks sarah will remember the details

02:04:52 marks sarah will remember the details i'm sure i'm thinking out loud here but i think a homogenous class b board would be fine effectively a class b material question mark but a lamination of board with something

02:05:03 but a lamination of board with something else should revert to the limited combustibility criteria does this make sense don't quote me on this yet

02:05:10 this yet what do you think brian now first it looks as if this exchange was the first time tony baker's question had been raised with you is that correct

02:05:21 is that correct yes

02:05:25 now here was a serious question would you accept posed by a senior and reputable bre technician copied to sarah colwell herself

02:05:36 copied to sarah colwell herself do you accept that yes yeah

02:05:38 yes yeah now

02:05:39 now your response half an hour later as we can see i've read to you tends to suggest and is this right that you've never actually thought about this question before is that right

02:05:54 um perhaps not in the terms that was being talked about here why is that

02:06:07 well i hadn't been asked this question since we worked on the draft in 2006. well historically i i see why you say that but

02:06:17 that but given that the whole purpose of adding the phrase filler material etc to 12.7 back in 2006 was to ensure that the core of a composite external panel was

02:06:29 of a composite external panel was of limited combustibility

02:06:33 how could you not have thought of this question

02:06:36 question before november 2013

02:06:47 well i probably hadn't thought about it between 2006 and 2013 which is quite a long period of time

02:06:54 and

02:06:56 i think i've focus

02:06:58 focus when we were drafting the 2006 edition was thinking about the response to the edge um whereas this was looking more at um

02:07:08 um thinner laminate which perhaps um wasn't at the forefront of our minds when we were drafting that text

02:07:14 text but goes back to the point that there are lots of different ways of doing things and we were trying to draft

02:07:21 draft something with a broader

02:07:24 broader impact

02:07:26 impact taking it in stages did you consider tony baker's question carefully and thoroughly and do any research before you responded um i think that's why i've said um i've

02:07:38 um i think that's why i've said um i've asked them what they think of that advice is because i've responded quite quickly and said well this is my thinking based on what i remember what we did in 2006

02:07:49 what we did in 2006 um

02:07:50 um and

02:07:52 and i think i'm referring to the edge fire there

02:07:54 there um which dr caldwell would have been involved in um and i'm asking them just to comment on what i'm saying do we take it that you didn't ask any departmental colleagues

02:08:05 departmental colleagues about this question before you responded

02:08:12 i doubt it why did you reply in terms which required you to think out loud and ask your own questions does this make sense

02:08:23 make sense when you were asked an important question about fire safety um because i'm trying to work collaboratively with the people at bre and say

02:08:34 people at bre and say is is this an ex is they were they were looking for something that they could make use of when they were talking to their clients so the question was can i help them find a form of words that

02:08:45 help them find a form of words that would um

02:08:46 would um that would answer their questions in a in a helpful way so i'm you know is this helping them is the question does it resolve the problem that they're experiencing

02:08:57 i mean this is a response sent which is highly conditional full of questions some 30 minutes after the question it looks like a knee-jerk response would you agree with that

02:09:08 response would you agree with that off the cuff um yeah it looks like it's off the cuff um i probably um

02:09:13 um wouldn't have replied like that to to another organization but i knew the people at bre reasonably well so i felt i could have a you know a more open discussion with them no i mean you

02:09:26 discussion with them no i mean you i think i've just confirmed that the particular incident was the edge fire yes

02:09:31 yes i believe so yeah yeah i can't think of one that would have met that description other than that yes and you told us before that the word filler was introduced in order to

02:09:42 in order to ensure that the core of a composite external rain screen panel was comprised of material of limited combustible combustibility and indeed that much else in the external cladding build up also

02:09:55 external cladding build up also why not just say that

02:10:03 i think it's what i am saying well you're not are you

02:10:09 perhaps i don't understand the point you're making well let's see what you say in your statement

02:10:15 statement um

02:10:16 um if you go please to page 39 in paragraph 116.

02:10:24 you say there at the start of the paragraph you summarize the email and then you go on halfway through the paragraph to say this he stated that the bre would like to achieve a general understanding

02:10:36 achieve a general understanding so that they could respond to all parties in the same way which is a goal that i wholeheartedly supported

02:10:42 supported i responded the same day giving an initial caveated view that a homogenous class b board essentially as a class b material i posited would be fine whilst anything

02:10:53 posited would be fine whilst anything else would revert to the limited combustibility criteria in mr baker's response on 3rd december 2013 he had stated that based on the evidence he had seen

02:11:02 seen it would etc etc and we'll come to that response

02:11:06 response later my question is on this part of the paragraph where you say an initial caveated view that a homogeneous class b board essentially as a class b material i posited would be

02:11:17 a class b material i posited would be fine

02:11:18 fine and for what reason were you positing or thinking out loud or giving an initial view on the actual meaning and practical application of a piece of government guidance of which you were the principal author

02:11:29 the principal author published more than six years before um i think because they were they were considering this question about where the finish starts and finishes which isn't something that had been

02:11:40 which isn't something that had been defined anywhere and so

02:11:44 and so i was

02:11:45 i was thinking about them the products that they they were looking at and trying to think well how do you differentiate between the two

02:11:53 the two and

02:11:55 and i took the view that if it's a continuous homogeneous material in a sheet then you could regard all of that as the surface but if you had something below the surface that was different

02:12:06 below the surface that was different then material limited combustibility would be more appropriate so it just seemed to me to be a reasonable interpretation in answer to the specific question they well it may have occurred to you to be a reasonable interpretation but you were

02:12:17 reasonable interpretation but you were the author of 12.7 and 12.6 and 12.7 at the time and you were is this right in authoring it carrying out the secretary of state's intention

02:12:30 secretary of state's intention yes

02:12:31 yes that's the point we joined we jointly authored it it wasn't me on my own well we've seen what happened all right you and mr burden yes let's leave it at that now do you agree that in doing that you

02:12:42 now do you agree that in doing that you were

02:12:43 were carrying out the intention of the secretary of state this is the secretary of state statutory guidance and you were carrying out his intentions yes yes

02:12:52 yes and and when doing that i thought you told us this morning that you had intended to ensure that the core of a composite rain screen panel was a material of

02:13:03 rain screen panel was a material of limited combustibility but that the surface was not intended to be a material of imaging combustibility but rested at class naught or class b s3 d2 yes

02:13:15 class b s3 d2 yes yes

02:13:16 yes and therefore why not simply say so

02:13:21 because i think the question they're asking here is where does the surface start and finish was that not a question you asked yourself at the time

02:13:29 in 2006 yes um i guess not why is that didn't occur to us at the time i suppose so we

02:13:38 so we as i think i've said numerous occasions we said it we we drafted that perhaps more quickly than we'd have liked to have done um and we weren't able to discuss it with as many people as we'd like to have done either

02:13:49 like to have done either so this is is this right this is the first time that this question had occurred to you or been posed to you or crossed your mind

02:13:57 mind yes

02:13:59 yes um well i was reaching a general understanding as to the meaning of your own guidance a goal as you put it some six years after it had been published

02:14:14 um well things change over time so it might they weren't reporting problems in the years previous to that so i'm guessing

02:14:25 guessing this was becoming an issue they were they were coming across so it makes sense to try and help them

02:14:34 help them come up with a an answer that made sense and delivered the objectives of the regulations well you say come up with an answer that made sense what about coming up with an

02:14:45 made sense what about coming up with an answer that reflected the intentions of the secretary of state as you understood them in 2006 i think it's the same thing what is it it depends were you not well i mean were you not immediately troubled by the fact that

02:14:57 immediately troubled by the fact that there was a lack of what is called general understanding of your own guidance

02:15:01 guidance your mr bird's guidance um again as i've said several times people asking questions about the guidance in the approved documents was was commonplace something we dealt with

02:15:12 on a number occasions every day did you not have thoughts at the time along the lines of

02:15:20 thinking that perhaps had you consulted on the meaning of the words filler material etc these questions wouldn't have been asked um i think in 2006 i wasn't entirely

02:15:31 um i think in 2006 i wasn't entirely happy with the position that we found ourselves in so i suppose the answer to your question is yes i don't i'd always thought that i would have preferred to have done

02:15:42 addressed that in in more detail at the time i mean looking at it candidly mr martin was this not the chickens coming home to roost

02:15:55 um

02:15:58 i didn't see like like it at the time as i say we get used to get lots of questions about lots of different aspects of the building regulations i didn't see this as being unusual now we don't need to see it but

02:16:10 unusual now we don't need to see it but i think you of elsewhere described the bre

02:16:14 the bre uh as highly reputable and can we take it that both tony baker and sarah colwell were in your view at the time experts in fire

02:16:24 um

02:16:28 i'm certainly experts in fight testing yes right did it not trouble you at the time that an understanding of the guidance in 12.6 and 12.7 of approved document b had not already

02:16:40 of approved document b had not already been reached even by the experts within that expert organization um judging by the email is an issue that had only risen fairly recently with with them

02:16:52 them and

02:16:52 and [Music]

02:16:55 [Music] i guess from their point of view they're they're testers not appliers of the regulations and they wanted to confirm their understanding or see

02:17:04 see the amendment to adb

02:17:07 to adb uh particularly 12.6 and 12.7 had been carried out by the bre under a contract with the government yes yes

02:17:15 yes yes in which you had been involved as

02:17:18 as an employee of bre uh but also two days a week to three days a week in government yes did it not bother you that the client who had

02:17:27 who had sorry that the the person who had actually carried out the amendments under a contract nearly the bre uh were asking government about what about what the product of that contract meant

02:17:39 contract meant no because it's about the people not the organization isn't it bre has doesn't i mean

02:17:44 mean i'd left bre so what i remembered obviously wasn't in anybody else's mind but mine

02:17:53 didn't all trouble you that sarah colwell was asking this question or other that tony baker was asking this question

02:18:00 question no

02:18:01 no did it occur to you at that stage that that a lack of general understanding even within the bre might at least have led

02:18:08 led to the emergence of non-compliant practices in industry during the six and a half or seven half years since the publication of amended approved document b in 2007.

02:18:21 no i i didn't i didn't see that as being a major problem at the time um as i say the the

02:18:30 we weren't entirely happy with the way that we'd had to draft that text back in 2006 um

02:18:35 2006 um and um

02:18:37 and um the intent was to try and get people to think broadly um and to some extent the discussions that bre were having with their clients was exactly the discussions that we wanted people to have was you know

02:18:49 wanted people to have was you know in the case of this particular product should i be thinking about the core material or the lining or whatever it is and and what you know should should we

02:19:01 and and what you know should should we should we be applying the material limited combustibility rule to it so just i understand that last answer when you got this question from anthony baker tony baker did you think

02:19:12 did you think oh good

02:19:13 oh good adb is having an effect people are starting to ask questions about it

02:19:20 i'm not sure exactly what i was thinking at the time but um i don't remember it being a particularly big deal to me it was as i say one of dozens of questions that

02:19:31 dozens of questions that i would have been dealing with and the reason i ask is it it seems from that answer and a number of others and please correct me if i've got the impression wrong that that you regarded adb is really a sort of discussion document something to provoke debate thoughts

02:19:43 something to provoke debate thoughts perhaps more research interest rather than being a guide

02:19:49 a guide on how to

02:19:51 on how to comply with the approved with the functional requirement um i think it sits somewhere towards the two really yes i think

02:20:02 two really yes i think as again as i think we've said a few i've said a few times um what the

02:20:08 what the what everybody should be focusing on is on on the functional requirement looking at the guidance and then applying their judgment as to what they think is right in the circumstances of the building they're looking at what's the point of

02:20:19 they're looking at what's the point of the guidance then to help them make those judgments well how does it help them make those judgments if all it does is provoke discussions debate questions and possibly that's that's that's how people make judgments is by

02:20:30 make judgments is by considering them looking at the available information if they're not sure going off and doing more research speaking to their colleagues but if i want to comply with the functional requirement uh and i don't know what to do what do i

02:20:42 uh and i don't know what to do what do i look at you'd start with a proved document be i guess you might also look at trade information you might speak to your colleagues and if you don't understand it you'd seek further advice and do you think that was the intention

02:20:53 and do you think that was the intention and effect of the statutory guidance mr martin to some extent i think yes how much of an extent and it varies on the project and the complexity of the question you're looking at so was it your understanding

02:21:05 looking at so was it your understanding let me be clear about this that the approved documents and approved document b in

02:21:10 in particular uh was

02:21:14 was really just a discussion document to provoke discussion to allow people to come to a judgement somewhere down the line as opposed to a straight road map which had a presumptive effect of

02:21:26 which had a presumptive effect of compliance if you complied and a presumptive effect of non-compliance with all that entailed if you didn't i think depending on the situation there was always an element of the designers

02:21:38 was always an element of the designers and the building control body having to think

02:21:41 think um and apply their own judgment so chuck it out there see what they think and answer questions as you go and that's all very good for the construction industry i don't think i'd phrase it that way how would you phrase

02:21:53 phrase it that way how would you phrase it i think it's providing the best guidance you can at the time um to support professionals making um what quite difficult judgments

02:22:03 in your email to mr baker 1547 let's get back to that please um [Music]

02:22:09 [Music] can we go back to it's as it's clg one triple zero five eight nine five the one you sent to 1547 you you say that you are positing

02:22:20 you you say that you are positing that anything other than a homogenous class b board should somehow be caught by 12.7 of approved document b and should therefore be of limited combustibility but you're also saying that a homogeneous class b board would not be caught

02:22:32 not be caught by

02:22:33 by the limited combustibility criteria is that have i got that right yeah i think it's the point i'm trying to make yes yes okay now for absolute clarity it's right isn't it that there is a definition of homogeneous given in

02:22:46 definition of homogeneous given in en13501 we don't need to go to it but for our records it's at bsi four zeros one seven three eight page ten paragraph three point one point three uh and i'll read it to you aloud it's it

02:22:58 uh and i'll read it to you aloud it's it is a product consisting of a single material having uniform density and composition throughout the product i'll say that again a product consisting of a single material having uniform

02:23:10 of a single material having uniform density and composition throughout the product

02:23:14 product now is that what you intended or understood by the word homogeneous in this context i don't know if i was specifically referring to the the european definition was just using the word homogeneous which

02:23:26 word homogeneous which means the same thing as far as i'm concerned which is it's something which is consistent through its thickness all right now to be clear were you therefore positing that all elements of a composite rain screen panel with an outer skin and an inner core

02:23:38 outer skin and an inner core would need to be of limited combustibility

02:23:43 now i think what i'm saying here is the core would be

02:23:51 well you don't know do you i think i'm answering in the context of the question but what were you positing take take a composite rain screen with an outer skin and an inner core were you

02:24:02 outer skin and an inner core were you positing here that both the outer skin and the inner core would need to be material of limited combustibility what i had in my mind there is that the core would be at material limited combustibility in the surface could be

02:24:14 combustibility in the surface could be class b or class o but we were talking about european classifications on this but a homogeneous range screen panel in other words not a composite would not need to be of limited combustibility yeah

02:24:25 yeah where did you get that interpretation from um

02:24:30 that's my interpretation of of the text as as applied to a sheet that's essentially the surface you know would you agree that there's nothing in diagram 40 and we

02:24:42 diagram 40 and we both i think very familiar with it for you to understand the question but do you agree there's nothing in diagram 40 or in 12.6 or 12.7 for that matter which tells us that a homogeneous class

02:24:54 which tells us that a homogeneous class b board is fine as you would put it at class b

02:24:58 class b i.e not of limited combustibility but that anything else should be caught by the word filler in 12.7 and therefore be of limited combustibility

02:25:09 combustibility when in the context of this question they're talking class um

02:25:13 class um diagram 40 talks about the surface surface isn't defined um

02:25:19 um and so you need to

02:25:22 need to apply um judgment to what it means um and that's the point i'm asking them to comment on is do you think it's reasonable to treat if you've got a thin panel which is a

02:25:33 if you've got a thin panel which is a homogenous material is is that not a class b surface question mark that's what i'm asking them is do they do they agree that's a reasonable interpretation but you presumably

02:25:44 interpretation but you presumably knew didn't you i'm assuming this maybe this is not right that class naught was defined in paragraph 13 of appendix a as

02:25:53 as as it was

02:25:55 as it was namely

02:25:56 namely that the

02:25:58 that the surface material or

02:26:01 or where it's homogenous or a composite product needed to be composed throughout either of limited combustibility or of a class one material meeting the various different indices surely knew that

02:26:13 different indices surely knew that um i think so but i'd say i'm trying to address their question helpfully yeah so did it occur to you that there might be something wrong with the definition of class naught if one had trouble answering where the surface ended and

02:26:24 answering where the surface ended and the rest of it began um

02:26:27 um i think it was a problem with talking about surface without being specific about what surface meant i think that's that's the point i was getting at is that you could read it different ways what's the most what's a reasonable way

02:26:39 what's the most what's a reasonable way that achieves the objectives of the functional requirement looking at your response do you accept that you didn't actually know the answer to tony baker's question well the answer i'm proposing is the one

02:26:51 well the answer i'm proposing is the one that i would apply and what i consider to be right but i don't have absolute authority and so i'm asking two experts in fire testing and cladding whether they think i'm a writer

02:27:04 whether they think i'm a writer but you the repository of the approved documents and not the bre i'm leaving aside the contract point for the moment why would you need to think out loud and ask them questions whether it makes sense or not be quoted

02:27:16 sense or not be quoted i don't have god-like knowledge of every form of construction and every technical question so when somebody's raising something with me especially people like um tony baker and sarah colwell have got

02:27:28 um tony baker and sarah colwell have got a lot of knowledge in this area i want to test test my views with them yeah but you didn't need to be of the almighty to know what was in your own mind when you drafted 12.6 and 12.7 in 2006. yes and i've just said what i thought was in my

02:27:39 i've just said what i thought was in my mind and i'm testing it with them to see whether it makes sense to them now why

02:27:45 why all that matters was that you reflected to them factually surely what you intended at that time just told them i think that's what i was doing

02:27:56 i think that's what i was doing did this

02:27:56 did this correspondence in november 2013 and your answer to him couched in the way it was not make it clear to you at this point that the guidance in 12.6

02:28:09 at this point that the guidance in 12.6 and 12.7 was not clear to those who would be using it

02:28:17 um i was aware that it wasn't as categorical as i'd liked it to have been in 2006.

02:28:22 in 2006. so i think that's a yes isn't it i suppose yes right did it occur to you uh

02:28:32 that i mean either at this time or any other time later that far from a goal which you wholeheartedly supported

02:28:40 supported as you say in your statement achieving general clarity of understanding of statutory guidance on the fire safety requirements for external cladding on high-rise buildings ought to have been achieved by the publication of the guidance itself

02:28:54 publication of the guidance itself that's a desirable outcome but it's my experience that's very difficult to achieve there are always questions that arise

02:29:04 so again does it come to this that adb was really little more than an aspiration guidance with fingers crossed so to speak

02:29:14 um no

02:29:16 no it was the best guidance we could give at the time based on on the information we had

02:29:25 did it occur to you at the time that it wasn't going to be possible for readers to arrive at a settled understanding of the meaning and remit of the guidance when you yourself hadn't reached any settled understanding in your own mind

02:29:36 settled understanding in your own mind but was simply questioning whether and positing and asking

02:29:42 asking the asker of the question whether your answer made sense

02:29:47 um so this is some this is a kind of conversation that i would have a dozen times in a day on a range of different subjects so i didn't see this as unusual um and was just doing my best to work with um

02:29:59 with um people in industry to try and um get the best outcomes right i mean did you not see your responsibility as achieving clarity

02:30:07 clarity in this guidance in other words a settled meaning and understanding which the entire industry could adhere to so as to achieve a uniformity of outcome well that would be a desirable

02:30:18 outcome well that would be a desirable objective and um and something that i would would have liked to have amended when i got the next opportunity you you call it a goal or a desirable objective and i i think really what i'm having

02:30:29 and i i think really what i'm having difficulty with please help me is why it's only a goal only a desirable objective why isn't it the objective the only objective because at that time i wasn't rewriting

02:30:40 because at that time i wasn't rewriting approved document b and didn't have the opportunity to change it so the question is what can you do at that time to address that issue so i was doing the best i could

02:30:51 so when is on this answer when is surface a surface and when is it part of the core

02:30:58 where does it where does the surface end and the call begin it's not defined in my view i think it's reasonable to um

02:31:06 um treat it as i've said out here i think it's reasonable to treat a homogenous panel as being the surface but if you've got um a laminated product then you're to think about the

02:31:18 then you're to think about the and the material that's in the core do you do you agree that the responsibility for and suicide can i just pass in a second because it closed me that um

02:31:29 because it closed me that um there is a question here which perhaps mr martin ought to be invited to comment on and that is this this whole debate mr martin

02:31:37 martin in a sense has been driven by the use of class naught as the criterion for uh satisfactory product uh on the exterior of a

02:31:48 product uh on the exterior of a high-rise building now we know that class naught has its origin

02:31:54 origin as a measure of performance uh for interior linings and what is passing through my mind is whether we ought to

02:32:05 whether we ought to deduce from that that class naught is only relevant if you're talking about an applied surface i.e the paper on the

02:32:17 i.e the paper on the plasterboard or the paint on the underlying metal or whatever it might be now if you take that view you don't have this problem do you with the distinction

02:32:29 this problem do you with the distinction between the surface and the interior of an homogenous product do you have any thoughts on that

02:32:45 the whole concept of a surface which is related to class naught only applies in a case where some surface has been applied to an underlying material

02:32:57 applied to an underlying material i guess in in response to that sir if we're talking about a homogeneous panel that's equivalent to a very thick layer of paint or paper

02:33:08 paint or paper well isn't it not really is it i mean the the homogenous panel if you imagine the piece of mdf or something like that which is

02:33:16 which is um

02:33:17 um the same material all the way through it has a surface in one sense but not a surface to which the concept of class naught can apply

02:33:29 um well you can you certainly could put a piece of mdf in a class o in in a propagation test and see whether you get glass over it i think i think there are classo mdf

02:33:41 think i think there are classo mdf materials available so

02:33:45 all right well um they are for what it's worth mr minute if you want to follow that up please do if you don't think it's worth following up just ignore it mr chairman i i'd like to

02:33:56 mr chairman i i'd like to think about that a little bit more before i do um

02:34:02 let me just see how far i get with this line then can i ask you mr martin do you agree

02:34:08 agree that the responsibility for deciding definitions of words within government guidance or explaining them fell to government

02:34:20 i guess the ultimate responsibility yes yes

02:34:23 yes and do you agree that in practical terms you were responsible for approved document b i was the desk officer for it and the secretary of state's responsible for it if you've been um pedantic which i don't

02:34:34 if you've been um pedantic which i don't desire to be but you've asked me the question no no fair enough pedantry is sometimes welcome here but uh you're quite right as a matter of legal responsibility of course ultimately it's the secretary of state's intention reflected by the wording

02:34:46 intention reflected by the wording signed by the secretary of state but in practical terms you were the you were the primary guardian weren't you the custodian of approved document b and

02:34:56 and uh as a custodian did you regard it as your responsibility to explain the intention lying behind the guidance particularly guidance that you had

02:35:07 particularly guidance that you had drafted

02:35:08 drafted of the intended meaning of the words or provisions in it yes well that's what i was trying to do in that email to bre yes

02:35:20 now there's no need to go back to the baker correspondence but does it surprise you to learn that mr baker considered your response to be unsatisfactory that's what he says in his fourth witness statement of

02:35:31 his fourth witness statement of paragraph 45 i don't think he told me that right

02:35:37 right what about sarah caldwell did she come back to you and and pick you up on the response not that i'm aware of

02:35:48 now can we take it from this correspondence that neither the meaning nor the intended application of paragraph 12.7 was settled in your own mind in november 2013.

02:36:04 it's in its intent was what as as i described in 2006 was to get the designers to consider a range of issues but it nonetheless threw up a question or a question has arisen to

02:36:15 question or a question has arisen to which you you couldn't point to 12.6 or 12.7 and provide a clear answer and its provisions aren't categorical so that they they needed some interpretation

02:36:26 interpretation so does that tell us that there wasn't a settled and understood meaning in your own mind even in in 2013

02:36:35 2013 of the meaning of 12.6 and 12.7 in general terms there was but for specific forms of construction different questions would arise right so let's just see if we can

02:36:47 just see if we can pin this down in november 2013 to what materials or component parts of an external wall arrangement did the term

02:36:57 term or the term filler materials etc apply such that those materials should be of limited combustibility i'm not sure i could give you a definitive list

02:37:10 so the answer is you don't know um i i guess if you pulled up a dozen different diagrams i could come up with what i thought it might apply to

02:37:23 well let me try a different way

02:37:27 when you're looking at an external rain screen panel take that as a an object a product

02:37:34 product was the requirement of limited combustibility limited to the core or did it extend to the whole product you're talking about a composite range

02:37:45 you're talking about a composite range screen panel you are right i am yes and then i would say it applies to the core and not the exterior not the external surface yes

02:37:55 we're all external panels to be of limited combustibility even if they were homogenous panels with no core that's not the way i read it so

02:38:05 so does that tell us that the limited combustibility requirements in 12.7 only applied to panels which were not composed of homogeneous materials

02:38:18 if we're talking yes yes i think that's correct

02:38:21 correct right

02:38:24 and was that your clear understanding in november 2013. i think so yes

02:38:46 mr chairman i it's 20 past four we're making some progress i i i don't want to spend 10 minutes now wasting time on the next set of documents if i can help it so it

02:38:57 set of documents if i can help it so it might be sensible to rise now and i may be able to shorten the next part of the examination i suspect it's 10 minutes for 10 minutes but

02:39:05 but i'm in your hands well i'm sure that if you think it may result in a shortening the examination mr

02:39:12 mr martin for one will not object and as long as we're making reasonable progress i see no reason why we shouldn't break a little bit early we are mate we are making reasonable progress

02:39:23 are making reasonable progress right well in that case we'll have a slightly early afternoon we can stop at that point mr martin

02:39:30 mr martin um

02:39:30 um as you've heard mr mill is making good progress and you won't mind if we stopped ten minutes early i'm sure we'll resume if we may please at 10 o'clock tomorrow morning

02:39:41 please at 10 o'clock tomorrow morning and i have to say this every time i know but please don't talk to anyone about your evidence or anything relating to it over the break and

02:39:50 and we'll as i say we'll see you at 10 o'clock tomorrow thank you very much do you like to give the usher please

02:40:06 thank you all very much we'll break there and resume at 10 o'clock tomorrow thank you

02:40:28 you