Coronavirus – construction has never been 'off the table' – Part 2

29 May 2020 | Applicable law: England and Wales

To read Part 1 of this article please click here.

As construction has never been 'off the table', responses over the last few months to the unprecedented and ever-changing circumstances and the impact they have had on construction projects have been diverse.

Decisions made are necessarily project specific, depending on the nature and location of the site and on whether projects are 'live', in the early stages of design or yet to commence at all. We have seen these range from complete site shut down to 'business (almost) as usual' (albeit at a reduced pace and in accordance with Government guidelines); from ramping up off-site construction of modular units for the NHS to moth-balling projects until times are hopefully more certain and market volatility has eased. Design has been able to continue at pace and virtual planning committees are now beginning to operate. In addition to granting planning permission, they may also be required to review existing planning conditions, for example, to allow sites to operate shifts over longer working hours.

Looking ahead

Even if, on 1 June and in the weeks ahead, life in certain ways slowly begins to feel more 'normal', there is no turning back the clock and the reality is that, until a vaccine can be found, coronavirus and its ongoing impact will continue to shape our work and lives. The Construction Leadership Council has been calling for collaborative ways of working to avoid costly disputes which are in turn more likely to result in insolvencies. Commercial solutions in the short term to help cash flow through the supply chain, such as returning retentions, waiving liquidated damages, payment for materials off site or shorter payment cycles have been suggested and in such extraordinary times parties need to work together to mitigate the impact of Covid-19 on projects as a whole. What happens when the Government's financial support through its job retention scheme is switched off in a few months' time remains to be seen – collaboration and a pragmatic approach to risk is likely then to become even more vital. The impact will inevitably need to be accommodated contractually too and, notwithstanding the lack of clarity surrounding the Government's guidance and its legal status (as referred to in Part 1 of this article), it will be prudent in future for construction contracts to address the potential impact of pandemics and Covid-19 specifically head on, to give parties greater clarity on who bears which risks.

The shape of things to come

As social distancing and the need for safe working practices influence how construction projects are undertaken, this will inevitably also have an impact on what is designed and built in the future. There is likely to be more emphasis on hybrid spaces for greater flexibility and re-commissioning and for purposes that would not have been contemplated on a wide scale in the pre-pandemic era – such as portable pods to allow elderly people to see and hold the hands of their families through a flexible plastic membrane , which can then also be re-purposed as a portable clinic, remote learning pod, etc. "Recognising the need is the primary condition for design" (Charles Eames). It will be fascinating to see the winning entries of the architectural body, RIBA's, design competition for the post-pandemic world, aiming to explore how the design of spaces (e.g. healthcare, remote learning, high density living, public transport, international travel, etc.) can mitigate the damaging effects of how we interact with space and with each other.

Construction sites in England have not so far been ordered to shut pursuant to any statutory provisions (although the possibility remains that such measures could be imposed in the event of a second wave). As construction has never been 'off the table' and as we all hopefully start to see light at the end of the tunnel, the construction industry and its response to the pandemic can be seen as a forerunner in leading the way out of the current crisis, in the sphere of health and safety, collaborative working, design, boosting and protecting the economy and navigating its way through the potential legal battlefield ahead. Lessons will inevitably be learned from how this all takes shape.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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