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‘Round the clock working’: could this be the ‘new normal’ for construction sites during COVID-19?

The Housing Secretary has issued guidance on what could be the ‘new normal’ working hours within the construction industry in England during the Covid-19 pandemic. Will similar guidance be introduced by the Scottish government in recognition that a balance must be struck to ensure that site conditions mitigate risks of transmission of COVID-19 amongst workers, but at the same time operate to prevent further delays to the progress of works.

The guidance set out by the UK Government on ‘Working safely during COVID-19 in construction and other outdoor work’ issued on 11 May 2020, sets out a five step guide to safe working conditions on site:

  1. An employer must have carried out a risk assessment of all its employees and their respective vulnerability to COVID-19;
  2. Increased cleaning, handwashing and hygiene procedures must be adhered to in line with government guidance;
  3. The employer must have taken all reasonable steps to allow people to work from home;
  4. The employer must have taken all reasonable steps to maintain 2m working distances; and
  5. If employees are unable to work at 2m distances, the employer must implement other measures to manage the risk of transmission: such as using screens or barriers to separate people or using back to back, or side to side working.

The UK Government has recognised that the new working conditions will inevitably have an impact on the amount of time it takes to complete any given task on site. In an attempt to mitigate the delays caused, not only by the period of time where sites have been closed, but also delays resulting from the new working conditions, the Secretary of State for the Ministry of Housing, Communities and Local Government, Robert Jenrick, issued a Written Statement – restricted to English based construction sites – on 13 May 2020 directing local authorities to grant requests made by developers and site operators to extend operating hours.

The general rule of thumb for local authorities when considering a request to extend operating hours, is:

  • Requests to extend working hours up to 9pm Monday through Saturday in residential areas should normally be allowed;
  • 24-hour working is permitted in non-residential areas;
  • Applications seeking to extend working hours to Sunday or bank holidays should not be approved; and
  • If an application meets the above criteria but it is nonetheless refused, the local authority must have a ‘compelling reason’ for doing so.

The government has not provided much guidance to local authorities to assist them in determining what might be considered a compelling reason for rejecting a request for extended operating hours on site. However, to the extent that the government has offered some guidance to local authorities, one must consider whether there will be a:

“…significant impact on neighbouring businesses or uses which are particularly sensitive to noise, dust or vibration, which cannot be overcome through other mitigation, or where impacts on densely populated areas would be unreasonable.”

It is likely, therefore, that developers and site operators will be met with little resistance from its relevant local authority to extend its operating hours, providing it stays within the parameters set out by the Housing Secretary in his written statement.

No similar guidance has been issued for Scotland, Northern Ireland or Wales. From a Scotland perspective it is hoped that now the construction industry has been given the ‘green light’ to reopen, similar guidance will be issued by the Scottish Government to mitigate delays to projects that are now two months behind schedule as a result of the pandemic generally and/or subsequent government legislation or guidance.

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