Court victory for multi-foil manufacturers

SUMMARY
The extension of a thermal insulation test to "multi-foil" thermal
insulation products introduced by Approved Document BR443, 2006
Edition Conventions for U-Value Calculations amounted to a de-facto
technical regulation for the purposes of Directive 98/34 Art.8 and
should have been notified to the Commission of the European
Communities in accordance with the Directive. The failure to notify
rendered the approved document inapplicable and unenforceable.
=========================
[2007] EWHC 2417 (Admin)
R (on the application of (1) ACTIS SA (2) ACTIS INSULATION LTD) v
SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2007)
QBD (Admin) (Charles J) 2/11/2007
CONSTRUCTION LAW - ADMINISTRATIVE LAW - EUROPEAN UNION
BUILDING REGULATIONS : CONSTRUCTION INDUSTRY : FAIRNESS : INSULATION :
LEGITIMATE EXPECTATION : NOTIFICATION REQUIREMENTS : PUBLICATION OF
APPROVED DOCUMENT ON THERMAL INSULATION : REQUIREMENT TO NOTIFY THE
COMMISSION OF THE EUROPEAN COMMUNITIES OF THE DOCUMENT : Art.8
DIRECTIVE 98/34 ON TECHNICAL STANDARDS 1998
The claimant companies (C) applied for judicial review of a decision
of the defendant secretary of state to publish Approved Document
BR443, 2006 Edition Conventions for U-Value Calculations pursuant to
the Building and Approved Inspectors (Amendment) Regulations 2006. By
the approved document the secretary of state had revised how the
thermal performance of thermal insulation products and systems should
be calculated and declared. The main effect of that revision was to
require that "multi-foil" thermal insulation products, which C sold,
conform to the same test as traditional thermal insulation products
that had existed for a number of years. C contended that the secretary
of state had (1) failed to notify the changes effected by the approved
document to the Commission of the European Communities in accordance
with Directive 98/34 Art.8; (2) acted in breach of C's legitimate
expectation and on the basis of conspicuous unfairness by failing to
properly consult them and other interested parties.
HELD: (1) The introduction by the approved document in mandatory terms
as to the establishment of a product performance test of constructions
that included multi-foil insulation constituted a de facto technical
regulation for the purpose of the Directive and it should have been
notified to the Commission. The changes introduced by the approved
document had significant and far reaching practical effects, which
clearly affected the scope and application of the de facto regulation
that was in existence prior to the introduction of the approved
document. In particular the approved document (a) had an impact on all
of the free movement of goods, on the smooth functioning of the
market, on competition and on the development of the market; (b) had a
significant impact on the competition between multi-foil thermal
insulation producers and other thermal insulation producers and thus
on the scope of the de facto technical regulation before and after the
change implemented by the approved document; and (c) introduced
changes of such a nature and magnitude that the concepts of openness
and transparency in the field of building regulation strongly
supported the view that the changes should have been notified so that
other national bodies could consider the impact. Accordingly the
approved note was inapplicable and unenforceable as the United Kingdom
had adopted a technical regulation without first notifying a draft of
it to the Commission, Lidl Italia Srl v Comune di Stradella (C303/04)
(2005) ECR I-7865 applied. (2) The secretary of state had acted in
breach of C's legitimate expectation that they would be consulted
about the changes to the thermal insulation product performance
testing of multi-foil thermal insulation and that failure to consult
was detrimental to C.
Application granted
Reply to
Martin Pentreath
Could somebody explain what this is about?
I can see the complaints about the approval process, but what did it mean in practice?
cheers, clive
Reply to
Clive George
Perhaps you could explain it as though you were talking to your grandmother. Then maybe I'll understand!
mark
Reply to
Mark
It relates to multi-foil based insulation.
UK effected a revision which was to require that "multi-foil" thermal insulation products, which C(laimants) sold conform to the same test as traditional thermal insulation products that had existed for a number of years.
"The approved note was inapplicable and unenforceable as the United Kingdom had adopted a technical regulation without first notifying a draft of it to the Commission"
"The secretary of state had acted in breach of C(laimant)'s legitimate expectation that they would be consulted about the changes to the thermal insulation product performance testing of multi-foil thermal insulation and that failure to consult was detrimental to C."
The same argument applies to many building regulations, and incidentally was the argument used by many retailers who were not consulted about Part P. Hence retailers on consulting legal counsel did not give a toss about Part P.
Reply to
Dorothy Bradbury
I'm guessing the "multi-foil" products failed that test, and I'm hoping it was not because they were inadequate, but for some other reason. What was the test, and why did they fail (if they did?)
cheers, clive
Reply to
Clive George
In article , Clive George writes
In short, these products fail because they are shit and they will never achieve the claimed performance in a real life installation. It may be a victory for the manufacturers but it most certainly is not a victory for common sense or the uninformed consumer.
Reply to
fred
ISTR reading something on the TRADA website (the timber trade association
formatting link
about multifoils.
They were (as I recall) cautioning members about using them in standard timber construction designs as TRADA's own testing indicated that multifoils would fail to achieve the manufacturers claimed performance.
Pity - they look like they should perform well, and it would be a hugely convenient form of insulation if it could act as a direct substitute for 200mm fibreglass.
Reply to
dom
Insulation must meet BR443 (not sure after which date), which states that it must have ETA (Euro Tech Approval).
The test method is specified under EN ISO 8990 and is known as the guarded hot box test. This is the only test recognised by BR443. Multiple foil layers are essentially a radiant barrier and - which the test will accommodate. The problem stems from multi-foil makers defining other standards and then testing to them, which might create a high U value which is not obtainable under EN ISO 8990. It may be done to achieve lower production/process costs, and one reason why ISO standards exist for testing :-)
The ruling hinges on a technicality. There is no reason a product should not meet the required standard under the test if designed to do so, some may not.
Reply to
Dorothy Bradbury
Could you elaborate on how Part P impacts on retailers?
I can see how a multifoil manufacturer is greatly impacted by whether it can claim that it's products are Part L compliant - but Part P is mostly about installation and testing.
What other examples are there of unenforceable building regs?
Reply to
dom
My loft looks like a thick sea of fibreglass duvet :-)))
There is a flipside, if we use shredded gov't bureacracy paperwork, we could insulate the world several feet deep.
I suspect manufacturers used/created tests which a sensitivity analysis would show emphasised radiant barrier performance. Multiple layers of foil are high radiant barriers, thus creating a high U value. Taken to an extreme the product value when tested under EN ISO 8990 is notably less - with the result that despite "whole house" view Part L is not met.
Innovation in the building industry is more about cost than actually delivering innovative solutions. A very dumb move considering its low barrier to entry.
Reply to
Dorothy Bradbury
Reading between the lines:
The makers of multifoil products make performance claims based on their own tests conducted in such a way as to allow them to perform well.
Building regs introduced a requirement that they be assessed in a different way (i.e. comparable to the requirements of other insulation products). In this case they did not perform anything like as well. The makers got them hump and found a technicality to knock the requirements out of the building regs. Hence claiming a "victory".
This still leaves the thorny issue of whether they actually work well enough in real world situations to be worthwhile.
Reply to
John Rumm
Original Part P caused some retailers to put warnings or even tape off areas. In original form it prevented the fitment of a telephone socket in a kitchen unless Certifying Body Member.
Revised Part P made restrictions clearer, but requires people to actively break BS7671:2001 in order to comply with it.
One specific example was cited by a chain lawyer, after I brought the matter up with him (my area is HF & H&S).
1. BS7671:2001 compliance requires cables to be run i) in defined zones and ii) at restricted angles for compliance. The reasons are health & safety and indeed the often cited example of a bathroom cable outside the angle limitation.
2. Part P compliance requires cables to be replaced in the exact route for which installations pre c.1970 will be outside. In that era cables were run diagonally (angle) and without regard to corner/ceiling zones or to/from accessories.
To meet BS7671:2001 you have to break Part P of BR.
It is interesting to note that 17th regs remove zoning so as to 'fix Part P' - perhaps Gov't input 'loophole by loophole'.
By retailing certain components to end consumers.
The problem of Part P stems from "Competent" being changed to "Certifying Body Member". BS7671 refers to "Competent" or "Electrical Engineer". Part P imposes the requirement for a "Certifying Body Member" where Member may be a company rather than individual.
The chains lawyer cited the limitation in BR: "Building Regulations do not require anything to be done except for the purpose of securing reasonable standards of health and safety for persons in or about buildings (and any others who may be affected by buildings or matters connected with buildings)".
Interesting in light of my above example.
There are other areas where compliance of Part P would require a non-compliant BS7671:2001 installation. When I get hold of the 17th regs I will post if any more are "closed".
As far as retail sales the BR limitation indicates the key requirement to BS7671 and of Competence on the installer, and not the requirement to be of a self-certifying body.
Even so I suspect BS7671 will trend to specification of "What" rather than provide a 'Requirements-Spec' where the "How" is left to installer. I also suspect that Part P will progress as an indirect taxation tool, and such loopholes closed by political & commercial input into IEE standards.
SMMT are after a "Part P" for cars. Some UK vendors are "jumping the fence" on UK Ring Circuits - change the regs to require additions/new final circuits to be in radial, force more MCB & CU upgrades.
Taxation transfer from direct taxation to indirect taxation is seen as preferable by gov't because it creates direct employment & thus taxation in doing so. FLIR camera, HIPS, Part P, Z etc home assessors with clipboards.
Not unenforceable - unenforceable based on a technicality. This technicality was based on failure to notify the Commission of the European Communities in accordance with Directive. Do not read my comments as the regs are unenforceable, but as subject to a test of legality of 1) Creation & 2) Standards.
So far the Gov't is not willing to go after Retailers. It would not succeed in doing so on 16th/Part-P wording, it might have more scope to do so with 17th reg wording. It may use HIP to enforce elec inspections (as Fensa) and "Certifying Body Member" will (& are) lobby insurers. Insurers will not refuse insurance, but offer discounts and I expect it within a year or two - PIR + MWC EIC for Part P.
Insurers already do it with VRIS alarm/immobiliser certificates, if your installation predates VRIS tough - you either get a new VRIS certificate or you lose a Thatcham immobiliser discount.
Reply to
Dorothy Bradbury
Apologies, I posted the original cryptic post in haste because I'd noticed the controversy here about these multi-foil products (mainly due to the slagging off they got when I asked about installing them myself!).
Anyway, as others have pointed out, this is merely a legal-technical victory for the manufacturers. The government had changed the standards for the multi-foil products, meaning that they didn't measure up any more. But the government didn't notify the eurocrats in Brussels of this change as they were supposed to do under the terms of an EC directive. Neither did the government consult the manufacturers. Because of this purely procedural flaw, the new standards were struck out by the court. This is no judgement at all on the practical merits of the multi-foil products, and the government can still introduce it's new standards, but it will have to jump through all the procedural hoops first.
Apologies if that still sounds like legalese, my excuse this time is it's way past bedtime!
Cheers!
Martin
Reply to
Martin Pentreath
On Thu, 29 Nov 2007 17:57:32 -0000, a particular chimpanzee, "Clive George" randomly hit the keyboard and produced:
My understanding is it's a decision on whether the BRE (as an arm of the UK Government) had the right to amend its guidance on how to calculate U-values without consulting the rest of the EU. I've briefly read through the judgment, and it doesn't seem to cast doubt on the guidance itself, just the way it was introduced.
The BRE document itself permits testing either by a 'hot-box' test, or by evaluating the thermal resistances of the layers + the surface emmissivities. Neither of which suit the manufacturers, as they say it doesn't represent the 'true' insulating properties of the product.
It means that the situation is back to before this guidance was published, that is to say, clear as mud. The test that TRADA carried out for Actis (Tri-Iso Super 9) has been discredited, and several manufacturers have obtained BBA certificates with Resistance values a lot less than the initial claims.
If you intend to use it, you would be best advised to speak to your BCO before, as policies will probably differ between different authorities (and I suspect, between different BCOs in the same district).
Reply to
Hugo Nebula
On Thu, 29 Nov 2007 20:21:12 GMT, a particular chimpanzee, "Dorothy Bradbury" randomly hit the keyboard and produced:
I presume you mean a high R (Resistance) value, or low U-value.
Reply to
Hugo Nebula
Not sure I agree with that...
Part P doesn't require that, it merely allows it without notification. Incidentally the "safe zones" concept for cabling was introduced in the June 1987 amendment to the 15th edition, so came in well after 1970.
Not true, you can rewire a circuit fully to BS 7671, but the work may become notifiable.
Also untrue: the draft 17th ed. retains the safe zones [522.6.6] but 522.6.7 allows 30 mA RCD-protected circuits to deviate "where none of the provisions of 522.6.6 can be complied with." In any case it is widely rumoured that this will change in the final published edition (due in January) so as to to require all unprotected cables (like T&E) in walls to be on 30 mA RCD'd circuits, whether or not in the safe zones.
[snip lots]
I've never heard any serious suggestion about restricting to whom electrical installation materials can be sold. It wouldn't work anyway, you'd just have a black market.
One quite significant change in the draft 17th ed. though is that, where previous editions have said "good workmanship and proper materials shall be used" [133-01-01 in the 16th ed.], we now have "good workmanship by competent persons and proper materials shall be used in the erection of the electrical installation. Electrical equipment shall be installed in accordance with the instructions provided by the manufacturer of the equipment" [134.1.1].
Reply to
Andy Wade
Tinfoiling your home might not make sneese in a thermal context.
But if there is a financial reason to get it installed it makes sense as it helps cut down the radio information going to and fro from one home to the next.
Of course one must imagine that the British Secret service have worked up a method of peeking through the power lines that is several generations home from the telephone phreaking days of yore.
And assume that such milestones have been embedded in Russian and US security tricks a generation or so earlier.
And maybe several CDs on the subject are in circulation. Do not open them without first closing your curtains.
Reply to
Weatherlawyer

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