Has your construction project been delayed by severe weather?

Tue 6th Mar 2018

Severe weather can cause widespread disruption, including major delays to construction projects. We outline what to do if your construction project has been affected by bad weather.

Over the past week the UK has been blanketed in snow by the Beast from the East and battered by gale force winds courtesy of Storm Emma, causing wide spread disruption across the country. So, what do you do if your construction project has been affected by the weather?

Check your contract to see who carries the risk for severe weather

The first thing you should do is check your contract. Weather is a risk that can fall on either the employer or the contractor. Therefore, it is important to check which party carries the risk i.e. cost for delays caused by weather.

If you are a contractor and have lost time as a result of severe weather, it is important to establish whether or not you can get an extension of time to complete the project and/or extra money. A construction lawyer can advise you on this. If the contract allocates weather as an employer risk event, then the risk falls with the employer. If the contract does not specify who carries the weather risk, it will automatically fall with the contractor. It is also important to note that some standard forms of building contracts share the risk between the employer and the contractor.

Find out if you can agree a new completion date

If you are a contactor and your contract includes a completion date that attracts delay damages, you should, as soon as possible, investigate whether you are able to claim an extension of time for the disruption caused to you by adverse weather. Contractors should submit their applications for extensions of time in a timely manner and not wait for the project to complete.

Questions you need to ask if your construction project has been affected by bad weather

When considering a claim arising from problems caused by severe weather, all employers, contractors and professional consultants should ask the following questions:

  • How bad does the weather have to be to qualify for an extension of time?
  • Is the contractor entitled to extra time, extra money or both?
  • Did the weather actually delay the project? If not then an extension of time will not be granted.
  • Does any other clause in the contract, such as ‘force majeure’ entitle the contractor to relief?
  • Has the contractor given notice on time? If not, an extension does not have to be granted.
  • Are the sub-contracts back-to-back with the building contract? In these situations, the contractor might end up being in delay under the main contract but having to grant his subcontractors an extension of time.
  • The contractor might have to take the hit on any delays if the contract does not provide any right to relief.
  • If the parties disagree about the contractual position and the contractor believes he has been unfairly denied additional time and/or money he should consider referring the matter to adjudication.

Has an insurance event occurred?

In addition to looking at the build contract, the parties should consider whether an insurance event has occurred, such as flood or storm under a construction all risks policy. If an insurance event has in fact occurred, it is important to ensure any notices required are given under the contract and to the relevant insurers.

Check all your contracts in future

This is a timely reminder to check that all future contracts provide protection for adverse weather and sub contracts are back to back with the main build contract. Don’t forget that under Regulation 34 of the Construction (Design and Management) Regulations 2015, a duty holder must take suitable and sufficient steps, for an indoor site, to provide a reasonable working temperature and, for an outdoor site, to provide protection from adverse weather, so far as reasonably practicable.

For more information or advice contact the Corporate and Commercial team at Coodes Solicitors on 0800 3283282 or info@coodes.co.uk. For advice on any commercial disputes, please contact Peter Lamble, Partner at Coodes Solicitors on 01872 246200 or peter.lamble@coodes.co.uk.

Tue 6th Mar 2018

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