12 May, 2020
The government has announced some additional measures, specifically about unsafe cladding, in relation to improving building and fire safety for multi-storey and multi-occupied buildings. The government has also promised to provide funds to assist those who are required to carry out rectification and remediation works.
Our previous construction update “Construction Industry Insights: The government’s response to its building safety consultation” summarised the government’s most recent regulatory proposals following the Grenfell Tower tragedy in 2017.
The government initially limited its post-Grenfell advice to a requirement to replace Aluminium Composite Material (ACM) cladding. However, the government then commissioned further research into the safety of other cladding materials and the resulting report has concluded that, whilst ACM cladding poses the highest risk, other types of cladding should also be assessed and, in some cases, replaced. This includes certain high-pressure laminates (HPL) and timbers. The government’s advice also states that investigations must extend beyond cladding, for example to spandrel panels, balconies and external wall insulation.
The government has indicated that it expects freeholders and owners to undertake and meet the cost of any investigations and remedial works. However, responsibility is likely to fall on the party who has management, maintenance, repair and safety obligations under the terms of the relevant lease.
A Management Company is commonly a party to the leases for blocks of flats and it is often the case that the freeholder has delegated its responsibilities for management, building maintenance, repairs and safety by agreement to that Management Company. In this situation, it may be the Management Company’s responsibility to undertake the investigations and any rectification and remedial works in respect of unsafe cladding.
In respect of who has responsibility to pay for those works, this also depends on the specific terms of the lease in question. Payment may be the responsibility of the freeholder or, if so provided by the terms of the lease, the freeholder may be able to collect the costs of some/all of the works from the leaseholders through service charge provisions in the lease.
The answer therefore depends on the terms of the lease in question. It is important to seek professional advice to correctly identify who has responsibility to investigate cladding issues, to deal with any rectification and remedial works and to pay for those works.
The government’s unambiguous and unwavering message is that investigations into potentially unsafe cladding and any resulting rectification and remedial works must be undertaken as soon as possible because these works are critical to public safety.
Despite the current Covid-19 pandemic, the government expects all reasonable steps to be taken to ensure investigations and any resulting works commence or continue where it is safe to do so.
Further, parties who are responsible for building safety are expected to take mitigating measures. The government’s consolidated advice for building owners, published in January 2020 includes recommendations in respect of fire doors, insulation, smoke control systems and other short-interim measures.
The government has confirmed that it has already set aside £600 million to be made available to help building owners meet the costs of replacing ACM cladding.
The government has recently announced a further sum of £1 billion in respect of grants for replacing unsafe non-ACM cladding. The government is still considering eligibility requirements and how these grants will function. The government has confirmed that further information is due to be released this month.
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*The information set out in this article is correct at the date of publication (12 May, 2020). The effect of coronavirus on businesses is a fast-changing area and so it is important to obtain legal advice to ensure you are properly protected.
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