How will the recent Government announcement to ban the use of combustible materials impact construction contracts?

The ban, according to the Ministry of Housing, will be delivered through changes to building regulations (‘the Regulations’) and will limit materials available to products achieving a European classification of Class A1 or A2. It is expected that these changes will be brought forward in late autumn.

The ban will apply to all high-rise buildings that contain flats, as well as hospitals, residential care premises and student accommodation above 18 metres.

Anyone signed up to a live building contract, or with a project about to start, needs to consider how change in law risks are dealt with. For example, under the unamended JCT Design and Build Contract 2016, a concern for Employers must be clause 2.15.2.1 and the possibility that compliance with the amended regulations will necessitate alterations which give rise to a Change. Given the increased cost of A1 and A2 cladding, a Change could end up resulting in significant additional costs for Employers.

If you are currently negotiating a building contract which will commence before the Regulations are changed, then a carefully worded Schedule of Amendments could be used to address this issue.