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ACM Cladding: Where are we now?

On 21 December 2018 the government’s promised ban on the use of aluminium composite (ACM) cladding on residential buildings came into force. Paul Tonkin answers some key questions.

Does the ban apply to all buildings?

No, the ban applies to new buildings over 18 metres tall containing flats, as well as new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres.

What about buildings under construction?

The ban will not apply where building working started before or within 2 months after 21 December 2018.

What is the effect of the ban?

The regulations prohibit the use of combustible materials on the external walls of new buildings. Any materials which form part of external walls and attachments such as balconies or sun-shades must achieve the requirements of European Classification A2-s1, d0 or A1 (classified in accordance with BS EN 13501-1:2007+A1:2009 entitled “Fire classification of construction products and building elements”). There are limited exceptions – for example for windows and doors.

What about existing buildings?

The ban does not apply retrospectively to existing buildings. However, the government has made clear that it expects the owners of privately owned buildings to replace ACM cladding without passing the costs on to flat owners. The government has identified 289 privately owned residential high-rise buildings containing combustible cladding panels and has introduced new powers for local authorities to remove cladding on privately owned buildings and to recover the costs from the owners. Whilst the government has said that costs should not be passed on to flat owners, this is not currently legally binding and the position will be governed by the terms of the leases. There have already been cases in which the First Tier Tribunal has held that flat owners were responsible for the costs of replacement cladding and associated fire safety measures. That said, a number of building owners have publicly committed to funding the works themselves and not passing the costs on to flat owners.

Hogan Lovells has a team of real estate, construction and regulatory lawyers ready to advise on these complex and fast-moving issues. Should you require further information please contact Paul Tonkin or your usual Hogan Lovells contact.