Mills & Reeve: Practical Completion

Counting down the days to the Jubilee

While celebrating the Queen's Diamond Jubilee this weekend, I doubt that time limits under the Construction Act (as amended) will be top of your list of priorities. 

However it is worth remembering that so far as time frames under the Construction Act (as amended) are concerned - including  those in relation to adjudication, service of payment notices, default notices, pay less notices,withholding notices and notices of intention to suspend - the Jubilee,or at least part of the long weekend, does count.

The 2 and 3 June 2012 count, even though they fall at the weekend, because neither are a bank holiday under the Banking and Financial Dealings Act 1971 ("the Act").  Section 116 of the Construction Act makes it clear that such bank holidays are excluded in calculating periods of time. The 4 and 5 June 2012 do not count because they are bank holidays under the Act.

 

Contamination - new guidance

Contractors are often obliged to accept responsibility for the commercial risks arising out of the presence of contamination on site, including any unforeseen pre-existing contamination.  Contractors should note that last month DEFRA issued further guidance.  The guidance contains extensive provisions for dealing with contamination and it is clear that it will be costly and time consuming to comply with those provisions.  Therefore, before agreeing to be responsible for contamination, contractors and sub-contractors should make sure that they are aware of the risks, have the benefit of robust warranties from the relevant consultants and have adequate insurance in place.

Materials becoming deleterious with the passage of time?

In the last few weeks, several collateral warranties have crossed my desk which have required a consultant not to specify "materials which are becoming prohibited with the passage of time". 

This goes beyond the usual requirement not to use materials generally known within the Consultant's profession to be deleterious/prohibited at the time of specification, but exactly how far into the future the consultant is supposed to gaze is not entirely clear!  Query whether this would be enforceable, but it is definitely one to watch out for, and to delete if possible...

If you cannot remove this wording, the obligation should, at the very least, be subject to reasonable skill and care, so that you are not under an absolute obligation to comply.

CDM Co-ordinator

I was asked this week whether it is possible to swap the CDM Co-ordinator on a project.  The answer is yes you can.  Regulation 14 of the CDM Regulations 2007 (320/2007) says that the client should appoint a CDM Co-ordinator on notifiable project and that such appointment should be changed or renewed as necessary.  One of the HSE’s FAQs on its website confirms this.

Do you know what you're doing when it comes to asbestos?

Following on from Alex's post last month in relation to the new Asbestos Regulations, the Great British Asbestos in Buildings Survey has found that a third of building managers and operators required to manage asbestos risk in buildings aren't fully aware of what is required of them under the Control of Asbestos Regulations 2012. It also found that up to a fifth of managers had not put in place the asbestos surveys required under the regulations.

For those managers or property owners amongst you who are feeling slightly nervous reading this and want to make sure that you are actually complying with your legal obligations, the HSE has a handy guide in relation to the duty to manage asbestos.  And for the rest of you who have a general interest in asbestos, watch out for our next edition of Building Blocks which is going to be an asbestos special.

Corporate Manslaughter Conviction First for Northern Ireland

JMW Farms Limited (Co. Armagh) has been fined a £187,500, plus costs, for the Corporate Manslaughter of 45-year-old employee Robert Wilson on 15th November 2010. 

Mr Wilson, who was working at the meal-mixing plant on the farm, was killed after being struck by a metal bin which fell off a forklift. The forklift was being driven by Mark Wright, one of the company directors. The investigation revealed a number of heath and safety failings on the part of the company. 

Whilst only a few cases have so far been brought under the Corporate Manslaughter and Corporate Hiomicide Act 2007, it will now almost always be considered as a possibility whenever someone dies as a result of potential health and safety failings,  The Police and HSE will work together to decide who takes the lead and which charges, if any, will be brought.

If you ever needed more incentive to properly manage your health and safety risks ....

Novating a consultant whose appointment pre-dates 1 October 2011

We are all well aware by now that construction contracts entered into on or after 1 October 2011 are subject to the Housing Grants Construction and Regeneration Act 1996 amended by the Local Democracy Economic Development and Construction Act 2009.  Contracts entered into before that date should comply with the old regime.

The effect of a traditional ab initio novation agreement is to end the previous contract (between consultant and old employer) and create a new one (between consultant and new employer).

Therefore where an appointment (entered into before 1 October 2011 and subject to the old rules) is novated on or after 1 October 2011 the novated contract will be subject to the new rules (regarding payment, suspension and adjudication).

It is a good idea for the consultant and the new employer to acknowledge this and incorporate in the novation agreement any changes the parties wish to make to the contract in consequence.

RICS New Rules of Measurement

RICS has recently published the second part of its New Rules of Measurement (NRM), following on from the publication of the first part in 2009 (since updated). The NRM seeks to provide a standard set of measurement rules designed to be comprehensible for quantity surveyors, property developers, contractors, professional consultants and construction lawyers.

It is intended that NRM will replace the Standard Method of Measurement, currently in its seventh edition (SMM7). Initially, RICS envisaged that the "switch over" would take place in summer 2010, but this has now been pushed back to July 2013.

All three versions of the 2011 JCT Standard Building Contract and both versions of the Intermediate Building Contract refer to SMM7 in their definition of "Standard Method of Measurement". Construction professionals/their lawyers should now start thinking about amending this definition.