Government announces next steps on combustible cladding

The government will also "give support" to local authorities needing to remove and replace unsafe aluminium composite material (ACM) cladding, including from private residential buildings, according to the announcement. However, the full extent of that support, including financial support, is still unclear, according to experts at Pinsent Masons, the law firm behind Out-Law.com.

The government announced its intention to ban the use of combustible cladding on high-rise buildings in the summer. This ban, as set out in legislation making the relevant amendments to the 2010 Building Regulations, will apply to the use of ACM cladding which does not achieve European classification A2-s1, d0 or A1 on the external walls or balconies of new buildings containing flats, hospitals, residential care premises, boarding school dormitories and student accommodation of over 18 metres in height.

As well as applying to new buildings, the ban will also apply where there is a 'material change of use' of an existing building bringing which brings it into scope. This means that where an existing building over 18 metres in height is being changed to become residential or institutional accommodation, any ACM material which does not achieve the required European classifications would need to be removed.

The revised Building Regulations come into force on 21 December 2018. However, some transitional provisions apply. The ban will not apply to projects where a building notice or initial notice has been given, or full plans deposited with a local authority, by 21 December; provided that the building work begins before 21 February 2019.

Construction disputes expert Michael Hopkins of Pinsent Masons said that while the wording of the regulations clarified the position for new schemes, it was not clear "whether, for example, ACM cladding that falls within class B on buildings above 18 metres constructed before the ban comes into force are compliant with the current building regulations".

"It could be viewed that this future ban suggests that current installations are compliant," he said. "It is also unclear as to how the ban will apply to schemes that are currently under construction, but will not complete until after the ban comes in."

Alongside the ban, housing secretary James Brokenshire announced that the government would give its "full backing, including financial support if necessary", to local authorities which need to carry out emergency work to remove unsafe ACM cladding from private residential buildings. Local authorities would then be able to "recover the costs" of this work from the owners of the buildings.

Health and safety law expert Katherine Metcalfe of Pinsent Masons said that the government did not appear to be granting any new powers to local authorities. Local authorities already have the power, under section 36 of the 1984 Building Act, to serve an enforcement notice on the owner of a building which does not comply with the building regulations, requiring the owner to either remove the work or make alterations to achieve compliance. If the owner does not respond within 28 days, the local authority may then carry out the work itself and recover the cost.

However, Metcalfe said that this power was "potentially narrower than the government's announcement suggests". In particular, if ACM cladding was installed in compliance with the building regulations in force at the time, local authorities would have "no legal basis to exercise powers under section 36", she said.

In addition, the use of section 36 powers was "usually a last resort for local authorities", Metcalfe said.

"Removing cladding would involve engaging a contractor, and therefore a procurement process," she said.

"The local authority has to pay for the contractor and recover the cost from the owner, all of which involves significant time and effort for the local authority. There are also significant financial implications, including having to fund the works, at least on an interim basis, and the risk that recovery from the owner may not be possible. The 'financial support' which the announcement indicates may be available from the government is therefore likely to be key," she said.