Out-Law Analysis | 08 Feb 2019 | 1:26 pm | 2 min. read
In December, the Northern Ireland chair of the Institute of Directors put the price tag of infrastructure projects stuck in the development pipeline since the collapse of the Northern Ireland Assembly at £2 billion. But it is not only projects halted by Stormont's hiatus: policy and legislation are jammed up as well.
Both the UK and Scottish governments have announced their intentions to implement the recommendations of Dame Judith Hackitt's independent review of building regulations and fire safety following the fire at Grenfell Tower, London in June 2017. The review called for a "radical re-think" of the whole fire safety regime, but stopped short of recommending a ban on flammable cladding on high rise buildings.
But on the day that the report was published, the UK government announced a consultation on the introduction of such a ban, with the result that, as of 21 December 2018, the use of combustible materials on the external walls of high-rise buildings above 18 metres in height that contain flats, as well as hospitals, residential care premises and student accommodation, will be banned in England and Wales.
As well as applying to new buildings, the ban will also apply where there is a 'material change of use' of an existing building 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 material which does not achieve the required European classifications would need to be removed.
The Scottish government has announced a similar ban which, like that in England and Wales, will be introduced by way of changes to the building regulations. However, as building regulations are a devolved matter for the NI Assembly and the Department of Finance, and in the absence of any apparent will to introduce legislation via direct rule, these changes will not apply to Northern Ireland.
Not only does this raise issues from a legislative position, but it will of course have an impact on how projects are procured in the absence of such legislation.
The market approach to the procurement of commercial developments in Northern Ireland is to include contractual obligations on contractors, sub-contractors and professional consultants to ensure that materials which are "prohibited" or "deleterious" are not used or specified for use in the construction process.
The phrase "prohibited" in this sense extends beyond materials that are prohibited in law, but extends to a contractual definition to cover any materials which are known within the industry to have an adverse impact on the construction or because they may cause harm to individuals. These provisions are commonly extended to address the specific nature of the buildings being constructed.
It is likely that, in the absence of a legislative assembly, the onus will fall on the business community to try and keep us in line with developments elsewhere in the UK and Europe. The market will react, even if the levers of policy are stuck - but it is a far from ideal situation, and only adds further complexity to procurement.
Ciaran McNamara is a Belfast-based construction law expert at Pinsent Masons, the law firm behind Out-Law.com.