Construction Industry Cladding Issues

Construction Industry Cladding Issues

06th August 2018

As the construction industry here in the UK continues to focus on the review of cladding materials and their use in the aftermath of last year’s Grenfell Tower fire tragedy, there are several issues for the sector to consider.  The government has now approved the terms of reference contained in the Grenfell Tower public inquiry and these include:

  • Both the design and construction of the structure, including the refurbishment and management activity.
  • The scope and adequacy of the  Building Regulations, including guidance on fire safety and other legislation, industry practice and guidance relating to the design, construction, equipping and management of high rise residential buildings in the UK.

Whilst the remit of the inquiry did not include examining the construction industry and the procurement process on a wider basis, this means that it does not cover the complex division of design responsibility on a large construction project and the differing routes by which a project of this type can be structured.  According to industry pundits, addressing concerns of this type may have assisted in dealing with the context of the procurement decisions made in relation to Grenfell Tower and the refurbishment work that had been carried out on the building. 

However, the tragedy has directly resulted in many of the construction industry’s players undertaking a comprehensive review of their cladding works, materials and contractual responsibilities. 

Most construction contracts require that a contractor, subcontractor or consultant complies with best industry practice, carrying out work with a reasonable level of skill and care and complying with all relevant statutory requirements, which include compliance with Building Regulations.  Moreover, most construction contracts include clauses which prohibit the use and specification for use of “deleterious” materials.

“Deleterious materials” is usually defined as being materials which are known (or generally known) to be suspected of posing a threat to health and safety, posing a threat to the structural stability or durability of the project or works and failing to be in accordance with industry standards and codes of practice. 

Construction companies involved in the review of existing cladding or specifying cladding materials for use in future projects should ensure that their contracts include adequate wording concerning the use and/or specification for use of deleterious materials.  It would be prudent to consider whether such contractual provisions are drafted widely enough to capture particular concerns about cladding materials and whether these would be deemed deleterious for the purposes of the contract.

The requirement prohibiting the use of deleterious materials is likely to be a burdensome.  In cases where cladding has been installed in breach of these contractual obligations, responsibility will lie with the construction professional concerned.  Formal legal proceedings may follow if the relevant professional (or their insurers) refuse to accept that responsibility. 

The majority of construction contracts have either 6- or 12-year limitation periods, which means that after the specified time, a claim under the contract would not be feasible.  When identifying potential issues, it would be wise to check when contractual documentation was entered into and whether this remains viable in the event of a claim.  It’s also necessary to check that adequate insurance provisions are in place, particularly on multiple sites.  Furthermore, a review of other security documentation (bonds or parent company guarantees) can help to ensure the financial security and construction assurance on a project.