The Secretary of State for Communities and Local Government (whose department is now simply referred to as 'Communities and Local Government') was recently found accountable for "conspicuous unfairness" towards ACTIS, manufacturer of the leading multifoil products on the European market, in a recent judicial review relating to the 2006 changes to the Building Regulation regime. When speaking of the 2006 edition of BR 443, the Judge stated that "a fair and appropriate procedure was not followed in making that revision."
The Judge ruled in favour of ACTIS, declaring that the provisions of BR 443 relating to the testing of multi-foils would be unenforceable until the proper procedures have been complied with. He also instructed the government to circulate further guidance on the use of multifoil insulation and an explanation of the judgment for the benefit of Building Control Officers.
The report below outlines the events leading up to this ruling.
There has been a long standing debate regarding the suitability of the 'hot box' test under BS EN ISO 8996:1996 to measure the thermal performance of thin, reflective multi-foil insulation.
These products are not currently covered by any British, International or European standards which in our view fairly measure the thermal performance and reflective properties of these products. It is for this reason that there are currently two procedures in progress at a European level for establishing an appropriate standard for thin multi-foil insulation:
- European Technical Approval (ETA) request via a CUAP; and
- European Committee for Standardisation (CEN), Workshop 36
2. CHANGES TO GUIDANCE ON INSULATION (BR 443)
The Department for Communities and Local Government (DCLG; formerly the Office of the Deputy Prime Minister, the ODPM) introduced a de facto technical regulation, BR 443 'Conventions for
U-value Calculations', which was amended in 2006 to make specific reference to the testing of multi-foil insulation products.
Before April 2006, the Building Regulation regime made it easier for Building Control Bodies to accept thermal insulation products which had been tested using methods other than the 'hot box', particularly if alternative test methods, and the results obtained from them, had been certified by reputable independent bodies.
However, the 2006 edition of BR 443 stated that the 'hot box' can be used to test the thermal performance of multi-foil insulation.
As a consequence of this action by the DCLG, the LABC issued a guidance note to Building Control Bodies advising that thin multi-foil insulation should only be accepted on the basis of the results given by a 'hot box' test.
3. CONSEQUENCES FOR ACTIS
As a consequence of these events, ACTIS found itself operating in a market which was severely restricted. Even though the Approved Documents and BR 443 are guidance documents, their effect is such that only products that comply with them are automatically presumed to fulfil the requirements of the Building Regulations. Whilst BCBs could, and still can, continue to use their discretion to approve products that are tested in other ways and which do not benefit from the automatic presumption of compliance, this became more difficult following the 2006 amendment of BR 443. Understandably, BCBs felt that the guidance limited their discretion in some way.
Therefore, following the 2006 amendments to BR 443, the use of products which offer an excellent solution for the retrofitting of insulation in existing buildings, which might not otherwise have their energy efficiency improved to the required levels (for example where the only alternative might be more conventional insulation products which require more space) became more difficult.
ACTIS opposed the 2006 amendments to BR 443, both in substance and on the basis that the multi-foil sector had not been involved in its preparation, whereas trade associations which included a number of traditional insulation manufacturers had been involved, and had largely funded, this process.
4. THE JUDICIAL REVIEW
ACTIS brought Judicial Review proceedings against the Secretary of State for Communities and Local Government and, on Friday 2 November 2007, the Administrative Court found in favour of ACTIS in these proceedings.
As a result of these proceedings, the provisions of the 2006 version of BR 443 which relate to multi-foil products have been declared inapplicable and unenforceable.
Two key issues which led the Court to find in favour of ACTIS on the question of BR 443 were as follows:
(i) the DCLG did not notify the 2006 version of BR 443 to the European Commission as required by the Technical Standards Directive, which seeks to reduce barriers to trade within the internal market; and
(ii) the DCLG failed to consult the multi-foil insulation sector before the drafting was carried out.
The DCLG did this even though it was aware that the subject was under debate, and in the knowledge that the redrafting of the guidance document was largely funded by trade organisations (namely the CPA and TIMSA) whose members include direct competitors of the multi-foil industry.
Importantly, the DCLG had initially agreed to grant certain multi-foil manufacturers, including ACTIS, a derogation period to allow them to obtain an ETA and CE marking, during which time the provisions of BR 443 relating to multi-foil products, would not apply. The DCLG subsequently withdrew this derogation period, without notice and without explanation, in a manner which the Court found to be conspicuously unfair and in breach of a legitimate expectation that the derogation period would be honoured.
The DCLG will soon circulate a letter confirming to BCBs that they are entitled to use their discretion to accept or reject products tested using methods other than the hot-box if they wish to do so. Products tested in other ways can still be accepted, just as they were before the 2006 amendments to the regime: they are simply not automatically accepted in the same way as products tested using the hot-box.
We highly recommend that you read a copy of the recent Judicial Review Judgment.
We also encourage you to read this report alongside a more detailed explanation provided by our lawyers, Ashurst LLP.
Our team is, as always, on hand to give further information about our products and our in-situ testing programmes. It is our belief that all insulation products should be tested in-situ, to establish their performance relative to other products subject to real weather conditions. Call us on 01249 446123 to discuss these issues further.