Pause on Construction until 30 July 2021: Implications for Energy Businesses

Engineers Discussing Construction Plan

Yesterday, the NSW Government announced that all construction in Greater Sydney would be paused until 30 July 2021. The new measures were gazetted on 17 July 2021 in the 8th Public Health Order, the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 8) Order 2021, which has the effect of amending the prior Orders. The construction related measure is in response to delta variant cases that have emerged from construction sites.

Where does this leave those in the construction industry and those businesses who carry out ‘works’ such as the installation of solar panels?

This means that work will halt on a number of construction sites. Construction site means a place at which work, including related excavation, is being carried out to erect, demolish, extend or alter a building or structure but not work carried out in relation to a dwelling in which a person is residing.

The prohibition is set out in clause 24AB:

There are exceptions to the prohibition including where work is required to ensure the safety or security of a construction site and to maintain critical plant. This may encompass work carried out by solar installers required to ensure that panels are secure on site but would not cover the installation of new systems or new components.

The exception of ‘mainlining public utilities’ clearly covers work by entities such as Essential Energy. While the supply of electricity within embedded networks involves a private party carrying out some of the functions of a public utility supplier, works carried out by that entity are unlikely to be exempt unless they are required to ensure the continuity of supply or the safe operation of the embedded network.

What about residential premises?

Looking at the definition of construction site alone (which does not include …work carried out in relation to a dwelling in which a person is residing) may lead you to think that residential energy related works are not prohibited. That is not the case.

When it comes to visiting ‘places of residence’ i.e. going to a residential premises, clause 22A applies.

What this means is that unless work is urgently required, as set out in sub-clause (4B) your business is not able to visit residential sites.

Contractual implications

Many energy businesses are under contractual obligations to deliver and complete work over the next two weeks. Energy businesses need to consider what the contractual implications of the new measures will be. To do this, they should consult with their in-house legal team or external lawyers and should do so as soon as possible.

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Connor James

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