Access to Site

© Daniel Atkinson 2000 25 September 2000

Meaning of the term "Access to Site"

"Access to Site" may have a number of meanings in a construction contract. It may refer to the means and availability of the approach to the Site area, whether by land sea or air. It may also mean the ability to occupy the site area. The second sense is usually referred to as "possession of the site", although terms such as "access to site" and "use of site" are also used. The first meaning of "Access to Site" is examined below.

Access to the site in which the works are being constructed is necessary to allow transport and delivery of materials, plant and equipment as well as to allow services and the workforce to reach the site. In order to be effective the access must be suitable for the type of transport required and must be available to the contractor at the appropriate time. Even if access is physically available local permissions and custom clearances may be necessary to allow legal use of access.

Apportionment of Responsibility

The extent of any responsibility for providing the required access across adjacent property and buildings, obtaining the necessary permissions and the apportionment of risk for events which prevent the required access, will depend upon the terms of the contract. Generally, if it is necessary for one party to cooperate in order for the other to carry out the work, then a term will be implied (in the absence of express terms) requiring that party to do all that is necessary for him to do to complete the works London Borough of Merton v Leach (1988) 32BLR51. The extent of the obligation to provide access and obtain permissions will depend upon the type of work involved, the extent of possession and/or control of adjacent areas by that party and all the circumstances. Even if a term is implied that such physical access is to be provided by one party, the term may not extend to requiring that party to take responsibility for the adequacy of the access for the transport of plant and equipment for the works.

General Case Law

Two decisions of the courts, one Canadian and one English, demonstrate the principles involved in apportioning responsibility for providing access to site.

In the Canadian case of Penvidic Contracting Co Ltd v International Nickel Co. of Canada Ltd [1975]53 DLR 748 the contract involved the laying of track and top ballasting on a railroad. Penvidic was the contractor and was constantly delayed by the failure of other contractors to properly grade and sub-ballast the right of way in front of its machinery. In addition the International Nickel Co failed to obtain the necessary wayleaves and permissions to cross various hydro lines and highways. It was held that the extent of possession or access provided by an Employer would vary with the nature of the work and the circumstances. In the case of a new project the main contractor would normally be entitled to exclusive possession of the entire site in the absence of express terms to the contrary. A term would normally be implied that the site would be handed over within a reasonable time and, in most cases, with a sufficient uninterrupted possession to allow the contractor to carry out his obligations by the method of his choice. It was held that International Nickel Co had failed to do so and that this was a breach of contract entitling Penvidic to damages.

In LRE Engineering Services Ltd v Otto Simon Carves Ltd [1981] 24BLR131 Simon Carves was the contractor for building works at steelworks at Port Talbot. LRE were subcontractors and had completed a very substantial proportion of the works when a steel strike broke out. The activities of pickets at the site prevented LRE completing the work until some considerable time later, causing them to incur considerable additional costs. LRE maintained that Simon Carves was in breach of contract in that it had an absolute obligation to see that there was available entry to the site at all times. This was not accepted. It was held instead that the term "access" had more than one meaning in the relevant Clause 24. In one part of the clause it meant "physical means of access" since that part also referred to the condition of the access. Another part of Clause 24 placed an obligation on Simon Carves to "afford access" to LRE. This meant that Simon Carves undertook that at the relevant time there would be a physical means of access and also that LRE would be given the opportunity to enter the site by means of that access. On this interpretation it was held that there was no breach of contract. Simon Carves had provided LRE with the opportunity of entering the site by the required means of access. The fact that they were prevented from doing so was not a breach of contract.

Standard Forms

The standard forms generally expressly state the responsibilities for access to Site, in terms which reflect the type of work envisaged and the expected use of the forms.

FIDIC 1998

The FIDIC Red, Orange and Yellow Forms 1999 place the main responsibility for access on the Contractor and reflect the international and civil/mechanical type of works envisaged.

Clause 2.2 only requires the Employer to provide reasonable assistance, and then only at the Contractor's request, for the Contractor's application for permits, licences or approvals including clearance through customs and export of the Contractor's Equipment when removed from Site. Clause 4.13 makes the Contractor responsible for special and/or temporary rights of way including those for Access to the Site.

Under Clause 4.15 it is for the Contractor to satisfy himself as to the suitability and availability of access to the Site, and is responsible for obtaining permissions to use the route and signs. Clause 4.15 expressly provides that the Employer does not guarantee the suitability or availability of particular access routes.

ICE 7^th Edition

The ICE 7"' Edition also places the main responsibility for access on the Employer, subject to specific prescription in the contract, with particular emphasis on the apportionment of liability for use of UK public highways reflecting the civil engineering, UK based type of works envisaged. The Contractor is however required to satisfy himself that the access is suitable.

Clause 11(2)(c) provides that the Contractor is deemed to have inspected and examined the Site and satisfied himself as far as practicable of the means of access to the Site.

Under Clause 29(l)(b) the Contractor is required to carry out his operation, so far as compliance with the Contract permits, in such a way as not to interfere unnecessarily or improperly with access or use of occupation of public or private roads and footpaths. Under Clause 27(2)(a) on the other hand the Employer is required to obtain any streetworks licence to carry out the Permanent Works. It is suggested that this does not extend to licences for access, but only for Permanent Works which are street works. In particular Clause 30 places the obligation on the Contractor to act reasonably in his use of public highways for access and transport, and divides the liability as between Contractor and Employer for claims arising from such use.

Under Clause 42(1)(c) the availability and nature of the access which is to be provided by the Employer may be prescribed in the Contract. Clause 42(2)(a) provides that subject to Clause 42(1), at the Commencement Date the Employer is required to give such access to the whole of the Site as to enable the Contractor to commence and proceed with construction. Under Clause 42(2)(b) the Employer is required to provide such further access to allow the Contractor to continue with due dispatch. Under Clause 42(4) the contractor bears all costs and charges for any access required by him in addition to that provided by the Employer. It is suggested that Clause 42(4) applies only to additional access which the contractor may require for his own convenience, and not access necessary to proceed with construction which is to be provided by the Employer.

ECC 2^nd Edition

The Engineering Construction Contract is said to be applicable to all types of construction contracts. Its main use has been in civil engineering works. The form places an unqualified obligation on the Employer to provide access to site, but is silent on the responsibility for the condition or suitability of the access. The subcontract form is in similar terms and does not address common issues of attendance for which see below.

Under Clause 33.2 the Employer is required to give the contractor access to and use of the relevant part of the site while the contractor has possession of it. Each party is required to provide facilities and services as stated in the Works Information. Under Clause 43.3 the Project Manager is required to arrange for the Employer to give to the contractor access to and use of any parts of the works which it has taken over if it is needed for correcting a defect. If suitable access and use is not arranged within the defect correction period the period for correcting the defect is extended.

The adoption of terms "use", "access" and "possession" point to the term "access" referring to the approach to the site and "use" to the availability of the site. It is suggested that on this basis the Employer is required to keep open access to the site during the whole of the contractor’s possession of the relevant part of the site as well as during periods of defects correction.

There is no express compensation event under Clause 60.1 for failure to give access, but Clause 60.1(18) refers to breach of contract and would therefore allow the failure to be claimed as a compensation event.

IChemE Red Book

The IChemE Red Book 3^rd Edition places the main responsibility for physical means of access on the Purchaser, with responsibility for obtaining permissions on the Contractor. The form reflects the processing type of works envisaged in which the Contractor's main expertise is envisaged as designing and installing Plant.

Clause 23.2 requires the Purchaser to provide access to the Site from a convenient point on a road or from a railway or dock and requires that the access provided must be suitable for the transport of Materials and Contractor's Equipment. The Purchaser is only required to provide reasonable assistance in ascertaining the extent to which local laws or regulations could affect the execution of the Works.

MF/1Form (Rev 3)

The MF/I (Rev 3) form makes the Purchaser responsible for providing suitable access to the Site, subject to specified limitations, and he is also responsible for obtaining import licences.

Clause 5.1 provides that the Contractor is deemed to have satisfied himself as to all circumstances affecting the Site and if access has been made available to him. Clause 11.1 requires the Purchaser to provide such roads or other means of access to the Site as may be stated in the Specification but subject to such limitations as to use as may be imposed. Clause 1 1.4 provides that all approaches are to be in as conditions suitable for efficient transport of the Works.

Clause 11.3 requires the Purchaser to obtain all import permits or licences for any part of the Plant or Works.

Clause 21.1 requires the Contractor to use every reasonable means to prevent damage to any of the highways or bridges on the routes to the Site by any traffic of the Contractor or any of his SubContractors.

Clause 21.2 requires the Contractor to notify the Engineer of special loads as likely to damage any highway or bridge unless protected or strenghtened.

Clause 21.3 requires the Purchaser to indemnify the Contractor in respect of any claim of damage or injury to highways or bridges arising out of the execution of the Works, unless arising from the Contractor’s negligence.

Under Clause 21.4 the word "highway" in the preceeding clauses includes a lock, dock, sea wall or other structure relating to a waterway, in the event that the Contractor uses waterbourne transport.

JCT 1998

The JCT 1998 Forms do not include express terms stating responsibility for access to the site, but the apportionment of responsibility and risk is to be found in the list of Relevant Events which entitle the contractor to extension of time and the list of matters which entitle payment of loss and expense. It appears that the Employer is responsible for providing access to the site through adjacent areas providing he has possession and control of those adjacent areas. This will normally be the case if the works are building works, as envisaged by the JCT Form.

The Relevant Events which entitle the Contractor to an extension of time includes at Clause 25.4.12 the failure of the Employer to give in due time ingress to or egress from the site of the Works or any part thereof through or over any land, buildings, way or passage adjoining or connected with the site and in the possession and control of the Employer, subject to notice. The same mater entitles the Contractor to loss and expense under Clause 26.2.6. Under Clause 28.2.2.4 the Contractor may give notice to determine his employment if there is such a failure which causes the Works to be suspended for a period greater than specified, and the situation continues after giving notice, or is repeated. It would appear that the Contractor is responsible for access through adjacent areas which are not within the Employer's control or possession, if necessary to carry out the Works.

If an event occurs which prevents or interferes with that access, then the apportionment of risk for that event is determined by examination of Clauses 25 and 26. Three events in particular are relevant:

interference due to work carried out by other contractors of the Employer, and

interference due to work by statutory undertakers in carrying out their statutory obligations, and

strikes preventing access.

These events and the apportionment of liability have been considered in two cases under the JCT 63 form of contract, which apply also to the JCT 1998 form.

In Henry Boot Construction Ltd -v- Central Lancashire New Town Development Corporation [1980]15BLR8Henry Boot contracted to erect 296 dwellings and 77 garages for New Town. Three statutory undertakers while laying necessary mains for electricity, water and gas were alleged to have disrupted and delayed Henry Boot. The contract was the JCT 1963 Form.

It was recognised that Clauses 23 and 24 (Clauses 25 and 26 under JCT 1998) provided a mechanism whereby the loss was wholly borne by the Employer where events fell under both Clause 23 (entitling the Contractor to an extension of time) and Clause 24 (entitling him to loss and expense). Alternatively the loss would be shared where the event fell under Clause 23, but did not fall under Clause 24. In that case the Contractor is relieved from having to pay liquidated damages to the Employer, but he is not relieved from his own loss, nor is the Employer relieved from the loss which falls upon him due to the event. If the event does not fall under either Clause 23 or 24, then the loss of both parties is borne by the Contractor.

The issue was whether the work by the statutory undertakers was work not forming part of the contract, executed by persons employed by the Employer. If so then the Contractor would be entitled to an extension of time under Clause 23(h) [Clause 25.4.8.1 of JCT 1998]. It was held in a complicated interpretation of the contract, that the statutory undertakers work being a Provisional Sum for which the Contractor received only the cost of attendance, was not part of the Contract. For that reason, the contractor was entitled to claim for an extension of time and loss and expense caused by the alleged delays.

If it had been found that the work of statutory undertakers had been carried out as part of their statutory obligations, then Clause 23(e) [Clause 25.1.11 in JCT 1998] would have applied. The Contractor would have been entitled to an extension of time but not loss and expense.

A similar issue arose in Boskalis Westminster Construction Ltd - v Liverpool City Council (1993) 24BLR87 under the same form JCT63. Boskalis undertook to construct 179 dwellings in Liverpool, and the work was agreed, for the purpose of the preliminary issue before the Court, to have been delayed by statutory undertakers. The delays had been caused by industrial action in the form of a strike by the employees of a statutory undertaker. The statutory undertaker’s work was not part of the contract. The issue therefore was whether the contractor would be entitled to an extension of time under Clause 23(d) [Clause 25.4.4 of JCT 1998]. It was held that the strike by workers employed by statutory undertakers directly employed by the Council to execute work not forming part of the works was not covered by 23(d).

The decision is therefore authority for the interpretation that only strikes in which the trades were directly involved will entitle the Contractor to extension of time under clause 23(d) [Clause 25.4.4 of JCT 1998]. It is suggested that the decision may not be followed today.

SubContracts and Attendance