COVID-19 restrictions for Irish construction and development

Further to the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No. 10) (Amendment) (No. 2) Regulations 2021 (S.I. No. 29 of 2021), the restrictions on construction and development set out below will remain in operation until 5 March 2021. Further, the dates in subparagraphs (d)(iii) and (e) below now refer to the 30 day of April 2021 (as opposed to the 28 day of February 2021).

As part of the Irish Government's "Resilience and Recovery 2020-2021: Plan for Living with COVID-19", and as a consequence of rapidly rising cases of COVID-19 across the Irish population, additional Level 5 restrictions came into operation at 6pm on the evening of 8 January 2021, i.e. additional to those already in operation at that date.

Included in these are a number of restrictions that directly affect Irish construction and development. It is not yet clear when these restrictions will either cease to apply or be replaced/augmented by alternative or further restrictions.

Previously

Prior to 8 January 2021, "construction or development work" and related support services were designated as "essential services", such that a person engaged in providing them was entitled to leave his or her place of residence in order to work (assuming it was not practicable to work at home). This designation also extended to the repair, maintenance and construction of road, rail and utility infrastructure, and the supply and delivery of maintenance and repair services to businesses and places of residence (including electrical, gas, oil, plumbing, glazing and roofing services).

The January 2021 Regulations

The restrictions on construction and development which came into operation on the evening of 8 January 2021 are set out in the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No. 10) (Amendment) Regulations 2021 (S.I. No. 4 of 2021) ("January 2021 Regulations").

Under the January 2021 Regulations, the previous definition of "essential services" (in the context of construction and development) is amended so that only the following now qualify:

(a) construction or development of essential health and related projects, including those relevant to preventing, limiting, minimizing or slowing the spread of COVID-19;

(b) the construction or development of essential educational facilities at primary and post-primary level, including school building projects, which will provide additional capacity for students or involve essential maintenance or refurbishment works in support of the continued provision of education;

(c) certain essential projects relating to the construction and development at Technological University Dublin Campus Grangegorman;

(d) construction or development of social housing, whether contracted by, or on behalf of, a local authority or an approved housing body, (including those properties in a housing development that a local authority or approved housing body has agreed to lease, or where a developer has agreed to transfer ownership to a local authority or approved housing body or agreed the grant of a lease to a local authority in accordance with section 96(3) of the Planning and Development Act 2000 where:

(i) the local authority, or the approved housing body concerned, confirms that the completion of the housing project is necessary to alleviate homelessness, overcrowding, the numbers in emergency or temporary accommodation and to facilitate transfers from emergency accommodation or other forms of social housing in order to prevent, limit, minimize or slow the spread of COVID-19,

(ii) the project is funded, or has been approved for funding, in whole or in part, by the Department of Housing, Local Government and Heritage, and

(iii) the project is scheduled to be completed by the 28th day of February 2021;

(e) essential works on vacant residential properties, owned or controlled by a local authority or an approved housing body, which are necessary to allow the property to be allocated to a household on the social housing waiting list, and which are scheduled to be completed by the 28th day of February 2021;

(f) works of adaptation relating to a housing adaptation grant paid in accordance with Reg. 5 of the Housing (Adaptation Grants for Older People and People with a Disability) Regulations 2007 where the person in respect of whom the grant is payable consents to such works of adaptation being undertaken in his or her home;

(g) construction or development funded by the pyrite remediation scheme in accordance with the Pyrite Resolution Act 2013 which are scheduled to be completed by the 31st day of January 2021 and where the completion of such construction or development is essential to prevent, limit, minimize or slow the spread of COVID-19;

(h) the repair, maintenance and construction of critical transport and utility infrastructure;

(i) the supply and delivery of essential or emergency maintenance and repair services to businesses and places of residence (including electrical, gas, oil, plumbing, glazing and roofing services) on an emergency call-out basis;

(j) housing construction and completion works ongoing on the 8th day of January 2021 where such works are scheduled to be completed by the 31st day of January 2021 and will render the home under construction capable of occupation by that date;

(k) construction and development projects necessary for the maintenance of supply chains in respect of [alumina refining, the manufacture of chemicals/pharmaceuticals/products necessary for the supply chain of essential services/products necessary for national and international supply chains/computers, electronic and optical equipment/electrical equipment, machinery and other equipment/medical devices or appliances/medicinal, health, dental and other personal hygiene products, equipment, appliances and supplies] or [electronic communications services, networks, associated facilities and data centres] but shall exclude general purpose facilities such as office accommodation and car parks; and

(l) construction and development projects that relate to the direct supply of medical products for COVID-19.

The above list shows that, in the context of rapidly rising cases of COVID-19, the Irish Government is seeking to restrict construction and development activity as widely as possible, while acknowledging the need for only the most critical of projects to continue.

Non-essential services

In the event that works on a particular project do not qualify as "essential services", then they no longer provide a "reasonable excuse" (as referred to in the January 2021 Regulations) for a person to leave his or her residence. The requirement for a reasonable excuse is a penal provision under Section 31A of the Health Act 1947, and so failure to comply will result in the commission of an offence.

There is little doubt, therefore, that these latest restrictions will have considerable time and/or cost implications for non-essential construction and development projects all across Ireland, given the inability for people to work on such projects. However, the allocation of liability for these time and cost implications will depend on the nature of contractual relationships and the allocation of risk between parties involved in such projects.