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An update on the Government's remediation and COVID-19 Building Safety plans, and the refusal (for now) of site closures for non essential work.

The Government’s ‘Remediation and COVID-19 Building Safety Update - 27 March 2020’ states, in unequivocal terms, that the remediation of unsafe cladding (following the Grenfell Tower fire) is essential and remains a Government “priority” and “critical to public safety”.  This article sets out (among other things) an update on the Government’s refusal to force site closures for non-essential construction work (for now, at least); a summary of the 27 March Building Safety Update; and the £1.6 billion funding now available for unsafe cladding remediation schemes.  

Construction sites remain open if they can operate safely 

Boris Johnson remains under pressure to order the closure of non-essential construction sites in England as workers are forced to travel (including on overcrowded London tubes at rush-hour) despite all but ‘key workers’ now living in lockdown. The mayors of London and Manchester, and leaders of Scotland, Wales and Northern Ireland have called for site closures and have criticised Westminster for putting economics before public safety.   

However, as we have previously reported (Construction sites and COVID-19), the Rt Hon Robert Jenrick (Minister for Housing, Communities and Local Government) maintains that it is “sensible” for construction work to continue if it is “safe to do so” and if employers follow Public Health England’s guidance. He accepts that the necessary health measures would “prove too difficult for some site operators to adhere to” and it is for this reason (he says) that a number of companies have chosen to temporarily close construction sites (BBC Radio 4’s Today programme on Wednesday 25 March 2020).   Importantly, it is not necessarily only the challenge of adhering to Public Health England’s guidance that has led so many sites to close. Rather, many employers will be well aware of their obligations under the Health and Safety at Work etc. Act 1974 (“Health and Safety at Work Act”) and/or the Construction (Design & Management) Regulations 2015 (“CDM Regulations”). 

Read our previous articles by Colette Morgan-Ford, Construction sites and COVID-19 and Richard Vaughan,Coronavirus: the impact on construction contracts and property developments.

Given the mounting public and political pressure as the nation (particularly the NHS) works tirelessly to “flatten the curve” and save lives during the COVID-19 crisis, the day may soon come when the Government does force site closures. However, Robert Jenrick has made it clear throughout the debate that some construction projects are “essential” and (provided they can be done safely) should continue throughout the crisis. For example, he has made specific reference on numerous occasions to the fact that it remains essential to remove and replace unsafe cladding “of the sort we saw on Grenfell Tower” (25 March 2020: BBC Breakfast News and the Today Programme). The Grenfell Tower tragedy (June 2017) occurred because of the rapid fire spread caused by combustible cladding, specifically aluminium composite materials (“ACM”) cladding.

Building a Safer Future  

Following the catastrophic Grenfell Tower fire, the Government commissioned the former Chair of the Health and Safety Executive (Dame Judith Hackitt) to undertake an independent review into building regulations and fire safety in high rise buildings. Her ‘Building a Safer Future’ report was issued in May 2018. She made over 50 recommendations and called for (among other things) a radical rethink of the building safety system and how it works; and greater regulatory oversight and enforcement tools. The Government accepted Dame Judith’s recommendations and in its consultation dated July 2019 set out its key proposals for the reform of the building safety regulatory system. This included (without limitation) (1) using as a “starting point” multi occupied residential buildings of 18m high or more, new or major refurbishment (“Buildings in Scope”); (2) committing to the appointment of a single building safety regulator to oversee safety/regulation at national level for Buildings in Scope and; (3) new legislation.

Where are we now?

Mr Jenrick announced on 20 January 2020 his new measures to improve building safety standards here. 

He stated that:

  • Whilst “government action in this area has led to considerable progress to remove unsafe cladding, there are still some building owners who have been too slow to act.” He said that from February 2020 he would start to “name and shame” building owners who have still not started necessary remediation work, specifically in relation to ACM cladding (see below). 
  • The Building Safety Regulator will be established within the Health and Safety Executive (the “HSE”) to oversee the new regime and publishing consolidated guidance for building owners. It is now being established in shadow form and will be fully established once legislation is brought into force (hopefully, in 2020).

The Grenfell Tower tragedy highlighted the dangers of ACM cladding but subsequent extensive investigations revealed additional types of unsafe cladding (e.g. high performing laminate (“HPL”) - Bolton University fire November 2019). The results of those investigations culminated in a much wider building safety crisis affecting over half a million people.  Until the Budget of 11 March 2020 (see section below) the Government’s fund for unsafe cladding remediation was £600 million between the public and private sectors and this related to the remediation of ACM cladding schemes only. However, in addition to that sum, a further £1 billion is now available and also includes non-ACM combustible cladding (e.g. HPL).  

In February 2020, the Government did follow through on its threat to “name and shame” (above) building owners who were not moving quickly enough. The naming and shaming has perhaps since been superseded by the COVID-19 impact on the construction and property management sectors. However, the latest Government guidance note issued on the evening of Friday 27 March 2020 (section below) makes it clear that remediation of unsafe cladding remains an absolute priority despite the COVID-19 outbreak.  

Government guidance note: Remediation and COVID-19 Building safety update - 27 March 2020

The Ministry for Housing, Communities and Local Government has published a Guidance Note (Remediation and COVID-19 Building safety update) which states in unequivocal terms that the remediation of high-rise buildings with unsafe cladding and maintaining measures to ensure buildings are safe ahead of remediation “remains a priority for the government” and “is critical to public safety”. 

The Guidance Note explains that “The government has now put in place additional project management support with construction expertise [the “New Team”] to help oversee remediation. The additional support will identify blockers to progress and work directly with those responsible for remediation to support individual projects.” 

There can be no doubt that these works are essential. The New Team will work with the Government and those responsible for remediation in order to understand the impact of COVID-19 on remediation projects and to “identify ways to reduce the impact on pace. The message is clear: the Government is determined that combustible cladding remediation projects will continue throughout the COVID-19 crisis, come what may.   

£1.6 Billion available to fund the removal and replacement of combustible cladding

On the lead up to the Budget, the Government had come under increasing pressure to extend the remediation funds to non-ACM buildings. Despite the fact that the Budget was only 3 weeks ago (11 March 2020), COVID-19 has changed our lives so significantly that the announcements made by the Chancellor (Rishi Sunak) feel like a distant memory. In the Budget the Chancellor confirmed that an additional £1 billion of funding would be made available to remove unsafe cladding (including non-ACM cladding) from social housing and private sector Buildings in Scope.   

The Government had previously announced in 2018 £400 million for the remediation of ACM cladding from social housing and £200 million for the private sector in 2019. This, coupled with the £1 billion additional funding announced in the Budget, takes the total available funding for the unsafe cladding remediation schemes to £1.6 billion.

Conclusions

The Government wants to go further and faster to ensure that residents in high rise buildings are safe in their homes. It’s a “priority”; “essential”; and “critical to public safety”. It involves over half a million people living in thousands of unsafe buildings nationwide. The Government is calling on building owners to do the right thing, and do it now. Many building owners are working collaboratively with the Government’s New Team (project management and construction expertise) to identify mitigation measures to allow the cladding remediation schemes to progress as quickly as possible throughout the COVID-19 crisis and beyond. 

Given that many in the construction sector are facing unprecedented financial and operational challenges due to the cumulative effect of Brexit and COVID-19, contractors and subcontractors who have the requisite specialist skills and expertise could seek to work on these essential cladding remediation projects, provided they can adhere to Public Health England guidance and satisfy any other obligations they may have pursuant to, for example, the Health and Safety at Work Act and CDM Regulations (as above).

The impact of COVID-19 has no comparison in our recent history. In the context of completing these essential cladding remediation schemes, the Government, building owners and contractors/sub-contractors must all work together to achieve the best possible outcomes, in the most challenging circumstances. If the short-term impact of COVID-19 is not satisfactorily countered, vital businesses in the construction sector will not be preserved and there will be lasting damage to the wider economy. In particular, it is a test of mettle for contractors and subcontractors:  they must find ways to adapt rapidly to an unprecedented crisis; show resilience; seek COVID-19 funding where it is available (COVID-19: update on Funding); and find new construction opportunities (which may include these unsafe cladding remediation projects). All of these steps could help contractors and sub-contractors emerge intact once the COVID-19 crisis is over.   

We are advising an increasing number of construction clients in relation to the COVID-19 outbreak. If your business is being affected and you would like our assistance in: reviewing/amending your construction contracts; understanding COVID-19 funding options or employment issues, we are ready to help you.  

Contacts

Construction: Colette Morgan-Ford by email at colette.morgan-ford@weightmans.com

Banking & FinancePatricia Grinyer by email at patricia.grinyer@weightmans.com

Employment: Adele Shortman by email at adele.shortman@weightmans.com

Regulatory: Lili Oliver by email at lili.oliver@weightmans.com

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