With the government promoting the use of PAS 9980 as a means of assessing the risk to external wall systems (and therefore the extent of any remedial or mitigation work required), the difference between contractual rights and the resources and impact of PAS 9980 is coming into play. sharp focus
For those who have not yet encountered PAS 9980, it is a methodology for assessing the risk posed by exterior wall systems in buildings of all heights. Initially intended for use in conjunction with the Fire Safety Act 2021 (which requires responsible persons to carry out an external wall risk assessment), it has been gradually rolled out and used for other purposes.
“PAS 9980 exists only as a risk assessment methodology. In disputes over external wall systems, courts are unlikely to give it more weight than this.”
PAS 9980 now forms the basis for assessing risk (and therefore deriving any need for remedial or mitigation work) under the Government Developers’ commitment (and the resulting contract with developers) to correct safety works against life-critical fires in buildings over 11 meters high. , and to evaluate a EWS classification1. It lays the groundwork for today’s applications of the Building Security Fund to rehabilitate buildings over 18 metres, and is likely to do the same with the mid-rise fund.
At this stage, it is important to reflect on what PAS 9980 is and, perhaps more importantly, what it is not. In competent hands, it certainly provides a very useful risk assessment. It considers various factors regarding the building’s location, use and design, as well as the materials that make up the exterior wall system itself. It then gives each a risk rating on a sliding scale from high to low. These “mini” risk assessments are used to calculate an overall risk rating for the external wall system. It can be high, medium (distinguishing between tolerable and intolerable) or low. When the risk rating is high or barely tolerable, PAS 9980 should suggest what could be done to reduce the risk rating.
PAS 9980 assessments are a person’s subjective analysis based on their current understanding of risk and, like expert opinions in general, can vary widely.
What it is not
Having thought about what PAS 9980 is, we should reflect on what it is not. It is not intended to inform whether the building’s exterior wall system complies with building regulations or any contractual standards. It is only concerned with assessing the risk it poses based on the construction as it is built. Consequently, an exterior wall system that does no meeting the functional requirements of the building regulations could still be acceptably safe because the risk of any harm to residents is tolerable or low. Some remedial or mitigation work may be required, but may not be as extensive as that required to achieve building code compliance (which the building owner will invariably have undertaken, and individual tenants could reasonably expect ).
Such is the prominence of PAS 9980 today that one could be forgiven for thinking that it has replaced the building regulations and any contractual obligations that require the building to comply with them. But ultimately, the PAS 9980 is meant to be used in a voluntary basis, by agreement between the building owner and the contractor. It is not intended to replace the legal requirement to comply with building regulations or contractual obligations, and these remain firmly in force. In this sense, PAS 9980 should not be seen as an alternative way of complying with these things (because it does not), but as an alternative in its own right.
Risk appetite
Building owners can use PAS 9980 to achieve a level of safety for their residents without involving expensive and time-consuming work and to avoid costly disputes. This is as commendable as it is pragmatic. Equally, building owners may wish to have the building they have paid for, ie one that complies with building regulations. There is nothing to criticize in this approach. If that’s the case, trying to convince a building owner to use PAS 9980 may be a sensible plea to expediency, but it’s not a request that has any legal muscle.
PAS 9980 exists only as a risk assessment methodology. In disputes over external wall systems, courts are unlikely to give it more weight than this. Contract law and the requirement to comply with building regulations will continue to be the singular judicial focus. In this scenario, the PAS 9980 can be used to chip away at the edges of any quantum argument, but it will by no means be decisive. That said, PAS 9980 is very helpful in providing building owners with the assurance that their residents are safe and the contractor with a greatly reduced bill.
Therefore, its use should not be imposed (in fact, it cannot be if it is not contracted), because whether it is considered will ultimately depend on the risk appetite of the building owner. Its use will not always be possible, but when possible, PAS 9980 could be the answer. It is not a revolution as such, then, but a minor insurrection.
