With the recent arctic blast and its after effects still reverberating, it seems a useful time to consider how weather affects the construction industry.
With most standard form contracts providing for weather issues as events entitling a contractor to an extension of time and in some instances additional money, it is tempting to treat these clauses as “boiler plate” and gloss over them. However, with weather becoming more unpredictable globally, is that a safe stance to take?
The NEC4 Engineering and Construction Contract provides that weather measures at a specified place must, when compared to the weather data provided for in the contract, be shown to occur less than once in ten years (clause 60).
The JCT 2016 Standard Form of Building Contract provides that weather conditions must be “exceptionally adverse” to constitute a Relevant Event (clause 2.29)
Whilst the JCT does not define what is meant by “exceptionally adverse weather conditions” entitling the contractor to time and/or money, the “one in ten” rule is often applied as it would be in an NEC arrangement.
Exceptional weather is becoming an annual event
Weather is, of course, local in its effect and the definition of ‘exceptional’ in low lying areas may be very different to that considered by those living in areas such as Cumbria, the Welsh Mountains or the Cairngorms. But it is not just extreme cold and snow that adversely impacts projects. Across the country (and indeed internationally) historical weather records are now seemingly broken with regularity. Flooding events, such as those in Worcester in 2007 and 2014 and those in Leeds in 2015, are now virtually an annual occurrence, the result of which has seen the Environment Agency spending many millions in recent years on bolstering Britain’s flood defences.
If the government agencies responsible for the environment and transport etc. are putting such measures in place, can the weather truly be considered “exceptional”? Equally, if we experience unpredictable and severe weather more regularly (with scientists predicting that climate change will increase this trend rather than slow it down) how useful is the “one in ten” measure in reality?
Just because we experience floods, or high winds, or below zero temperatures more regularly, this does not limit the impact of those events on the projects affected by them.
Consider the time of year and location of the project
If you are working in an area prone to flooding consider the timing of the project, its proximity to areas known to flood, the historic data on weather and flooding and consider whether your contract needs amendment to protect both parties from unexpected cost or delay. If you are working in winter, plan the project properly with contingency for an possible event given the historic weather data. Think about whether the risk is better shared or in some way reallocated – if the client knows it is building near areas of flooding or at elevations prone to severe snow, shouldn’t there be a sharing of the cost if that event occurs, whether or not it is classed as “exceptionally adverse” or happens every 4 or 5 years?
The best advice is simply this. Don’t treat your “weather clause” as a case of simple boiler plate, think about it and plan for the worst that the weather can throw at you.