Possesion of Site© Daniel Atkinson 2000 25 September 2000 Revised 3 March 2003
Meaning of PossessionThe term "possession" or "use" or "access" or "occupation" is used in many contracts to describe the contractors right to enter the site, occupy or use the site and carry out the specified works. During the contract period, possession will usually involve such exclusive occupation and use the site as required to construct the works. At the end of the contract period, the contractor may require partial occupation to carry out performance tests. In that case the contractors use will usually override the Employer’s operation or use of the facility. During the defects correction period, the contractor will usually only require sufficient access to those parts of the facility which allow him to correct the defects. His access and use will usually be secondary to the Employer’s operation or use of the facility. The meaning and extent of "possession" of the site, and the apportionment of risk for events that interfere with possession, will depend upon the express and implied terms of the contract. The extent of uninterrupted possession will depend upon the nature of the work. In sub-contracts particularly in building works, often all work is carried out alongside other contractors with the resulting interference. In some cases there will not be continuous working Kitson Sheet Metal Ltd -v- Matthew Hall Mechanical and Electrical Engineers Ltd (1989) 47BLR82 and the contractors failure to obtain areas and access needed by the subcontractors will not be a breach of contract, provided the contractor made sufficient effort to obtain them. If the contractor is entitled to possession of the whole site to completion then in the absence of express terms, the Employer will not be entitled to take possession of part of the site before completion. In H.W. Nevill (Sunblest) Ltd -v- William Press & Son Ltd (1981) 20BLR83 his Honour Judge Newey QC considered the meaning of "possession" in Clause 21(1) of JCT63. He held that the word "possession" conferred on William Press, the contractor in this case, a licence to occupy the site up to the date of completion. On completion that licence came to an end, and Clause 15(2) and 15(3) gave only a right to re-enter to such an extent as was necessary to remedy defects. The decision of His Honour Judge Thornton Q.C in Impresa Castelli SpA v Cola Holdings Limited (2002) TCC deals with the meaning of the terms “access”, “partial possession” and “use or occupation” in the context of JCT forms of contract. Judge Thornton identified three relevant and separate types of possession and occupation which needed to be considered.
Judge Thornton provided a useful summary of the JCT provisions for possession, partial possession and occupation.
Implied TermsA construction contract necessarily requires the owner to give the contractor such possession, occupation or use as is necessary to enable him to perform the contract The London Borough of Hounslow v Twickenham Gardens Development (1970) 78BLR89. In a new project a term would normally be implied into a construction contract (in the absence of an express term) 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: the Canadian case of Penvidic Contracting Co Ltd v International Nickel Co. of Canada Ltd [1975]53 DLR 748. In the Canadian Case of The Queen in Rights of Canada -v- Walter Cabbott Construction Ltd (1975) 21BLR26 Cabbott contracted with the Crown to construct a hatchery building as part of a project involving six separate contracts. The hatchery building was Contract No1. Contract Nos 3 and 4 related to the ponds, which could not be built without use of part of the site for Contract 1. Cabbott alleged that the Crown had not disclosed before award of Contract 1 the possibility that Contracts 3 and 4 might be proceeds with, before completion of Contract 1. Cabbott claimed that the Crown had deprived it of possession of the site, at least in part, and sought damages for breach of contract, first for denying possession of part of the site and secondly for impeding its work. As to the first alleged breach, it was held that it was obvious that a contractor must have possession of the site and access to the site work to perform its obligations under a construction contract. The degree of possession or access provided by the Employer will vary with the circumstances. It was held that generally more than the actual site on which the structure stands is required to erect the structure. The Employer is normally required to give possession of sufficient portions of the site of the work to permit compliance with the Contract. It was necessary to examine the contract documents to ascertain whether any parts of the site normally available, had been deleted. In this case the possibility that Cabbott would not have the requisite availability of the site until work was completed was so remote as to be inconsequential. The Crown was therefore in breach of contract in denying possession of part of the site. As to the second alleged breach, it was held that generally there would be an implied terms that a contractor would have a sufficient degree of uninterrupted and exclusive possession of the site to carry out its work unimpeded and in the manner of its choice. In this case an express term attempting to exclude any implied terms, would have no effect because the implied term was fundamental to a building contract. It was held therefore that the Crown was also liable for the second breach of contract. A term will normally be implied that the Employer will not interfere with the work. 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 obtain the necessary permissions will depend upon the type of work involved and all the circumstances. In Ellis-Don Ltd -v- The Parking Authority of Toronto (1978) 28BLR106 Ellis-Donn was a building contractor engaged to build a parking facility for the Authority. Ellis-Don alleged that the Authority had failed to obtain the excavation permit needed to allow Ellis-Don to commence excavation shortly after award of contract, causing delay. The Authority argued that Ellis-Don should have been aware at tender that no permit had been issued and that it would not be issued until Ellis-Don prepared detailed shoring drawings. It was held that the Authority had the obligation to make a proper application, including the deposit of appropriate drawings. It was held implicit in the wording of the contract that the Authority was to have obtained the needed building permits at least as soon after the signing of the contract as to allow Ellis- Don to commence work when it was ready. It was held that there was an implied warranty on the part of the Authority not to interfere with the progress of the work. The Authority’s failure to obtain the excavation permit in time was a breach of contract and Ellis- Don was entitled to damages. Standard forms expressly give a right of access to the site for the Employer, his professional team and necessary contractors employed by the Employer. In the absence of an express term, a term will usually be implied that the Employer and the professional team will have a right of access for quality inspection, monitoring, measurement and supervision and administration of the contract. In most cases the nature of the contractor’s possession of the site is that of a contractual licence to enter, occupy and use the site. It would appear to be common sense that where the Employer no longer wishes the contractor to complete the works, that he should be able to suspend the works and expel the contractor from the site. The contractor’s interest is not usually in the site itself or in the construction of the works, but in the profit generated by the work. In that case insofar as the Employer’s actions are a breach of contract, the contractor can be adequately compensated by damages. Many standard forms recognise this type of situation, and provide appropriate procedures for "termination at will" with suitable remedies. The decision in The London Borough of Hounslow -v- Twickenham Gardens Development Ltd (1970) 7BLR89 is authority for the implication of a term, in the absence of express terms, that a contractual licence granted by the Employer was irrevocable. The decision is doubted however and unlikely to be followed today. In Tara Civil Engineering Ltd -v- Moorfield Developments Ltd (1989) 46BLR74 the court refused the decision in Hounslow and refused to look behind a certificate under the contract. In Wiltshier Construction (South) Limited v Parkers Developments limited the decision in Tara was distinguished since the Contract Administrator’s notice of default was invalid, and an injunction was continued to prevent the Employer issuing a notice of default determining the contractor’s employment. In the New Zealand decision of Mayfield Holdings Ltd -v- Moona Reef Ltd (1973) INZLR309 the decision in Hounslow and the implications of an irrevocable licence was criticised comprehensively. In that case it was held that business efficacy would usually require the implication of a term that in the event of a complete breakdown in the contractual relationship of the Employer and contractor, that the contractor would surrender the site and the works. This would leave the Employer to complete as and when he wished, and the contractor to seek a remedy against the Employer for breach of contract. In The London Borough of Hounslow -v- Twickenham Garden Developments Ltd (1970) 7BLR89 the nature of the contractor’s licence to occupy the site was examined in detail in the context of the JCT 1963 standard form of contract, now JCT 1998. Twickenham was engaged by Hounslow to construct the substructive for over 1,000 dwelling units mostly in the form of flats and maisonettes, including four tall buildings. During construction there were labour troubles on site, and a strike shut down the site for some 8 months. At the end of the strike, Twickenham resumed work on site. The Architect expressed concern at the slow progress on site and the low labour force. Twickenham replied that it was its policy not to increase the labour force due to the militant disruptive element contained in it. The Architect purported to give notice of default under Clause 25(1) (Clause 27.2.1 under JCT 1998). Subsequently Hounslow gave notice determining Twickenham’s employment under the contract. Twickenham replied that it considered the notice constituted a repudiation of the contract, but stated that it would not accept the repudiation, but elected to proceed with the works in accordance with the contract. Hounslow issued a writ and applied for an injunction to restrain Twickenham from remaining, entering or trespassing on the site. The first issue which was examined, was the type of licence which Twickenham had been granted to Twickenham. It was held that the contract necessarily requires the building owner to give the contractor such possession, occupation or use as is necessary to enable him to perform the contract. I was held that the contractual licence granted by Hounslow, was capable of being irrevocable, despite Twickenham’s lack of any other interest in the site. In this case, the contract conferred on each party specified rights on specified events to determine the employment of the contractor under the contract. It was held that in those circumstances, there was an implied obligation of Hounslow not to revoke any licence to occupy the site until performance had concluded, otherwise than in accordance with the contract. The next issue which therefore arose was whether proper notices had been given. If not then granting the injunction to expel Twickenham, would be to assist Hounslow to breach its contract, which the court would not do. It was held that Hounslow’s case fell considering short of the standard required to show it had validly determined the contract, and make it safe to grant the injunction. Accordingly the balance of convenience required the application for the injunction to be dismissed. It was recognised that the contract was one in which Twickenham could not perform the contract without the cooperation of Hounslow. The whole machinery of the contract was geared to act by the architect and quantity surveyor. It appears to have been accepted that the contract’s right to retain possession was to be distinguished from continue constructing of the work. It appears also to have been accepted that Twickenham would not be allowed to continue to construct the works where this required the active cooperation of Hounslow, although this is by no means clear from the decision. The distinction therefore appears to be between a contractor maintaining possession of the site and a contractor continuing to carry out the works. The injunction sought and granted only referred to the former. In Tara Civil Engineering Ltd -v- Moorfield Developments Ltd (1989) 46BLR74. Tara were contractors for the developer Moorfield for the main access road across the site under ICE 5th Edition. The case arose from an injunction restraining Moorfield from removing Tara from the site. Tara alleged that the problem arose mainly from the use by other contractors and other developments, when the roads were in an unfinished state. Consequently the roads had been damaged and the progress of the work impeded. Tara had sought an injunction to prevent Moorfield revoking its licence to occupy the site. Moorfield stated that Tara’s licence to occupy the premises had been revoked by the issue of notices by the Engineer under Clause 63. Moorfield argued that the court should support the agreed machinery of the contract and discharge the injunction. It was held that the court should only go behind a certificate, or any documents relied on to set in motion the Clause 63 procedure, if there was a lack of documents or proof of bad faith or proof of Wednesbury unreasonableness. That was not the case here. The Court would not at this stage determine the ultimate dispute between the parties. It was held that the balance of convenience was strongly in favour of the court supporting the Engineer’s decision. Accordingly, Tara’s licence to occupy the site was revoked and Tara restrained by injunction from entering the site except by consent. In Wiltshier Construction (South) Limited v Parkers Developments Limited (1997) 13 Const. L. J. No 2 129 Wiltshier were management contractors for Parkers the development company engaged in the construction of a supermarket for Tesco in Faversham, Kent. The contract was substantially the JCT Management Contract 1987. Clause 7.1.1 of the contract gave Parkers power to determine the employment of Wiltshier on default subject to notice by the Contract Administartor and failure by Wiltshier to remedy the default complained of. Clause 7.10 was a non-standard clause in the form of a termination at will clause allowing Parkers to terminate the employment of Wiltshier at its discretion subject to notice. The Contract Administrators purported to give notice of default by Wiltshier. Wiltshier commenced proceedings for an injunction restraining Parkers from serving a notice of determination based on the notice and this was granted. Parkers sought to have the injunction set aside. It was held that the purported notice by the Contract Administrator was invalid. The notice referred to Wiltshiers failure to carry out the works with due diligence, whereas it was not Wiltshier’s function to carry out the works but to act as a management contractor. The notice lacked the essential feature of directing Wiltshier’s mind to what, at least in general terms, was amiss, not with the works contractors’ performances, but with Wiltshiers performance as management contractor. It could not be inferred that Wiltshier was not doing its job properly simply because of cost and time overruns. The notice also expressed the intention to advise parkers to determine the contract regardless of any improvement in Wiltshiers improvement. This was not consonant with Clause 7.1. The decision in Tara was distinguished. An important distinction was that the certificate in Tara was one of opinion and not fact. Also in Tara it had been emphasised that the certificate being one of opinion and not fact, that the court would only go behind documents setting in motion the termination provisions in the contract if, among other things, there was a lack of documents which appeared to set the procedure in motion. That was the situation in this case, so the injunction was continued. If a contract contains an "entire agreement" clause, this will not prevent the implication of a right to possession without clear words. In Milburn Services Limited -v- United Trading Group (UK) Limited (1995)52ConLR130 United Trading was the main contractor and entered into a subcontract with Milburn for the repainting of the hull of a ship called The Safer. The terms of the Main Contract were incorporated into the Sub Contract. Clause 19 was an entire agreement clause and provided that the contract constituted the entire agreement between the parties and superceded any understanding, oral or written. The Main Contract was terminated and as a result both parties were excluded from The Safer. Milburn was prevented from completing the work. Milburn contended that there is an implied term in the subcontract that United Trading should ensure that the Milburn was allowed access to the work. It was held that it is both reasonable and necessary that someone who undertakes to do work, whether on a site on land or on a vessel at sea, shall be given access to the place where the work is to be done. United Trading contended that any term which would otherwise be implied was excluded by Clause 19 of the Main Contract which was incorporated into the Subcontract by Clause 2 of the Subcontract. It was held that reading Clause 19 as a whole it was clear that the parties were agreeing simply that the Subcontract should be construed from the written agreement on its own without reference to anything said or written before or afterwards. It was held that the Clause did not exclude vital implied terms such as that the parties should be allowed access to the work. It was held that United Trading owed a duty to Milburn to allow such access until the Subcontract was lawfully terminated. It was held that the express terms which related to lawful termination obviously limited the scope of the implied term in that the terms gave United Trading the right to place work on a standby basis. However none of the situations provided for in the termination clause had arisen and the existence of those terms only reinforced the view that the parties must have considered that there was a general implied term that there was a right of access to the work. Nature and Extent of PossessionUsually in construction contracts the contractor’s possession of the site is a temporary licence to occupy the site, and then only as necessary to carry out his obligations under the contract. A distinction has to be made between possession of the site and possession of the works. In English Industrial Estates Corporation -v- George Wimpey & Co Ltd (1972)7BLR126 George Wimpey was the contractor for an extension to a factory owned by the Corporation. By January 1970 a great deal of the work had been done and was being used by Reeds who leased from the Corporation. On 18th January 1970 there was a disastrous fire. Wimpey argued that the use and occupation by Reeds amounted to taking possession of those parts. It was held that the contract provided suitable machinery to determine precisely when the Corporation had taken possession, by the issue of an Architect’s certificate. Since no certificate had been issued, then despite partial use and occupation the risk had not passed to the Corporation and it was the responsibility of Wimpey to insure. A distinction was made between taking possession of a building and taking possession of building works. The installation of equipment, or the occupation and use of a part or section of the works was not to be confused with consensual transfer of possession. Taking possession of part of the works with consent was more than the sort of use and occupation and installation of equipment which occurred. The contractor’s possession of the site for the construction of the works does not therefore necessarily give the contractor possession for other legal purposes. The contractor’s occupation of the site and his execution of the works will however create potentiality liability to third parties for his actions. He may be liable for any damage either by physical injury to neighbouring premises or property on the premises, or by interfering with the comfort and convenience of the neighbouring occupiers. He may find himself liable for infringing various rights of water, air, light, support, rights of way and wayleaves and party walls. The extent to which the contractor is indemnified by the Employer will depend upon the express terms of the contract. Normally the contractor will be held liable for the consequences on third parties of his methods of working, unless possibly where specified in the contract. In respect of the completed works themselves, the general legal principle will apply, that the Employer will indemnify the contractor for the necessary consequences of the act carried out at his request in this case of constructing the works. The contractor is normally entitled to possession of more than the actual site on which the structure stands in order to carry out the works. This will usually included reasonable working space. It is necessary to examine the contract documents to ascertain whether any parts of the site normally available, have been deleted The Queen in Rights of Canada -v- Walter Cabbott Construction Ltd (1975) 21BLR26. The extent to which the possession is free of interference depends upon the type of work and all the circumstances and particularly the express terms of the contract. Where the contractor takes responsibility for the safety of the works throughout the site and for the method of constructing the works, then it is likely that the contractor will be considered to have exclusive possession of the site in order to give him the required control of the site. This will be subject to express terms, and the implied right of access to the Employer for monitoring, supervision and administration of the contracts. Express Terms of Standard FormsThe standard forms generally expressly state the extent of possession of the site, in terms which reflect the type of work envisaged and the expected use of the forms. FIDIC FormsThe FIDIC Red, Orange and Yellow Forms 1998 place the responsibility for providing possession of the site on the Employer, and as expected in a modern contract the programme figures largely in deciding when possession is to be given. The extent of the site to be provided is defined very widely. The Employer’s obligations in obtaining necessary legal permissions for access are severely limited. The Contractor’s obligations include the safety of the Site and require him to have extensive control of the Site. The extent of possession is not exclusive to the contractor, but the right of access to other contractors is prescribed, otherwise interference will be a variation to the contract with consequent entitlements. There is an express right of access for the Engineer to carry out their functions under the Contract. After completion, the Contractor has rights of access to remedy defects during the Defects Notification Period, and access to the Works, although circumscribed, to repeat failed Tests after Completion. The Employer may terminate the Contract at any time for his convenience. Clause 2.1 gives the contractor possession of all parts of the Site at the times stated in the Appendix to Tender (Particular Conditions in the Silver Form). If the contract specifies that the Employer is to give possession of any foundation, structure or plant, then he must do so in the time and manner stated in the Specification. If the Contract is silent then the possession is required to be at such time as to allow the Contractor to proceed in accordance with the submitted programme. The Employer’s failure to give possession at the appropriate time entitles the Contractor to an extension of time and payment of Cost and profit if not caused by the Contractor, subject to notice. Clause 17.3 (f) Red and Orange Forms provides that the Employers Risks, which entitle the Contractor to extension of time for consequent delay and payment of Cost incurred, includes use or occupation by the Employer of any part of the Permanent Works except as may be specified in the Contract. Clause 1.1.6.7 defines "Site" to mean the place where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places as may be specified in the Contract as part of the Site. Clause 2.2 only requires the Employer to provide reasonable assistance at the Contractor’s request, for the Contractor’s applications for permits, licences approvals where the Employer is in a position to do so. Clause 1.13 requires the Employer to obtain planning, zoning or similar permissions for the Permanent Works, unless the Particular Conditions state otherwise. The Contractor is required to obtain all the permits, licences and approvals for carrying out the Works. Clause 4.1 makes the Contractor responsible for the adequacy, stability and safety of all Site operations and all methods of construction. The extent of responsibility will of necessity require the Contractor to have extensive control of the Site, and would therefore suggest that use of the Site by others will need the approval and permission of the Contractor, at least to the extent that it affects the adequacy, stability and safety of the Site operations and methods of construction. Clause 2.1 expressly states that possession may not be exclusive to the Contractor. Clause 4.6 requires the Contractor to allow opportunities for carrying out work to the Employer’s Personnel, any other contractors employed by the Employer and any legally constituted public authorities, but only where specified in the Contract or instructed by the Engineer and in the execution on or near the Site of any work not included in the contract. Any such instruction is stated to constitute a Variation if and to the extent that it causes the Contractor to incur Unforseeable Cost. Clause 4.22 requires the Contractor to keep unauthorised persons off the Site, unless otherwise stated in the Particular Conditions. Authorised persons include the Employer’s Personnel which is defined at Clause 1.1.2.6 to include the Engineer and all staff, labour and other employees of the Engineer and the Employer. Authorised persons also includes other personnel notified to the Contractor by the Employer and the Engineer. Clause 7.3 provides that the Employer’s Personnel have full access to all parts of the Site at all reasonable times, and the Contractor is to give the Employer’s Personnel full opportunity to carry out examination, inspection, measurement and testing including access, facilities, permissions and safety equipment. Clause 11.7 provides that until the Performance Certificate has been issued, then during the Defects Notification Period the Contractor has a right of access to the Works as is reasonably required in order to remedy defects and complete outstanding work, except as may be inconsistent with the Employer’s reasonable security restrictions. Clause 12.4 of the Yellow and Silver Forms only, provide that if the Works fail to pass a Test after Completion (if specified) then the Employer may instruct that adjustments or modifications cannot be made until a time that is convenient to the Employer. If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in permitting access to the Works, then subject to notice he is entitled to payment of the Cost plus profit. Clause 15.5 allows the Employer to terminate the Contract at any time for his convenience. ICE 7TH EDITIONThe ICE 7th Edition requires the Employer to provide immediate possession of all of the Site subject to express provisions otherwise. The possession granted appears not to be exclusive to the Contractor, although he has extensive control of the Site and entitlement to compensation if there is undue interference. The division of responsibility for permissions makes the Employer responsible for complying with Acts etc relating to the Permanent Works or the unavoidable result of constructing the Works in accordance with the Contract. By means of various indemnities the Contractor is protected from third party liabilities which are the unavoidable result of constructing the Works in accordance with the Contract. Under Clause 42(2) the Employer is required to give the Contractor possession of the whole of the Site at the Works Commencement Date. This is subject to Clause 42(1) which recognises that the Contract may prescribe the extent of portions of the Site of which the Contractor is to be given possession from time to time. If the Employer fails to give possession, then the Contractor is entitled to extension of time for the delay suffered and payment of the extra cost incurred. Clause 1(1)(v) defines "Site" very widely to mean the lands and other places on under in or through which the Works are to be constructed and any other land or places provided by the Employer for the purposes of the Contract. It also includes such other places designated in the Contract, or subsequently agreed by the Engineer as forming part of the Site. Under Clause 8(3) the Contractor takes full responsibility for the adequacy stability and safety of all site operations and methods of construction. The extent of responsibility will of necessity require the Contractor to have extensive control of the Site, and would therefore suggest that use of the Site by others will need the approval and permission of the Contractor, at least to the extent that it affects the adequacy, stability and safety of the Site operations and methods of construction. Clause 31(1) requires the Contractor to afford reasonable facilities for any other contractors employed by the Employer and any other properly authorised authorities or statutory bodies, who may be employed in carrying out of work not in the contract on or near the Site of any work not in the Contract or of any contract which the Employer may enter into in connection with or ancillary to the Works. Under Clause 31(2) the Contractor is entitled to an extension of time for any delay and to payment of any cost, beyond that reasonably foreseen by an experienced contractor at the time of tender. Clause 37 provides that the Engineer and any person authorised by him shall at all times have access to the Works and the Site. Clause 26(3)(c) provides that the Contractor is not responsible for obtaining any planning permission which may be necessary for the Permanent Works in its final position or Temporary Works designed by the Engineer in their designated position on Site. Clause 26(3) requires the Contractor to ascertain and confirm with Acts, regulations and bylaws and to indemnify the Employer against all liability for breach of them, except if the breach is the unavoidable result of complying with the Contract or instructions of the Engineer. Clause 29(2) requires the Contractor to carry out the work without unreasonable noise disturbance or other pollution and Clause 29(3) is an indemnity by the Contractor to the Employer for such nuisance, to the extent that it is not the unavoidable consequence of constructing or completing the Works or performing the Contract. Where it is then Clause 29(3) is an indemnity by the Employer to the Contractor for such nuisance. Clause 20(1) provides that the Contractor is responsible for the care of the Works until the issue of a Certificate of Substantial Completion and Clause 20(3) requires him to rectify at his own cost any loss or damage except for Excepted Risks, which includes at Clause 20(2)(a) loss or damage due to the use or occupation by the Employer or his contractors not employed by the Contractor. Clause 22(1) is an indemnity by the Contractor to the Employer for damage to persons and property arising out of or in consequence which include at Clause 22(2)(b) the use or occupation of land provided by the Employer for the purposes of the Contract or interference whether temporary or permanent with any right of way light air or water or other easement or quasi-easement which are the unavoidable result of the construction of the Works in accordance with the Contract and at Clause 22(2)(c) the right to construct on over under in or through any land and under Clause 22(2)(d) damage which is the unavoidable result of the construction of the Works in accordance with the Contract and at Clause 22(2)(c) the right to construct on over under in or through any land and under Clause 22(2)(d) damage which is the unavoidable result of the construction of the Works in accordance with the Contract. ECC 2nd EditionThe Engineering Construction Contract is said to be applicable to all types of construction contracts. Its main use has been in civil engineering works. The Employer is required to provide the Contractor possession and use of the Site in accordance with the Accepted Programme, a central management document in this form. The possession is not exclusive to the Contractor since he must share it with Others, but the failure to of Others to do work within the conditions in the Works Information is a Compensation Event. The Working Areas are implicitly defined as the areas which are necessary to Provide the Works. Clause 33.1 requires the Employer to give possession of each part of the Site to the Contractor on or before the later of its possession date specified in the Contract Data and the date for possession shown on the Accepted Programme. Clause 33.2 requires that while the Contractor has possession of part of the Site, the employer is to give the Contractor use of it. Clause 60.1(2) provides that the Employer’s failure to give possession of a part of the Site by the later of its possession date specified in the Contract Data and the date required by the Accepted Programme is a compensation event. Clause 11.2(8) defines Working Areas in terms of the area specified in the Contract Data unless later changed in accordance with the Contract. Clause 15.1 provides the procedures for adding to the Working Area. One of the reasons for the Project Manager not accepting the Contractor’s proposal is that the proposed addition was not necessary for Providing the Works. Clause 11.2(7) defines Site in terms of the boundaries specified in the Contract Data and the volumes above and below it which are affected by work included in the contract. Clause 18.1 requires the Contractor to act in accordance with the health and safety requirements stated in the Works Information. Clause 25.1 provides that the Contractor is to share the Working Areas with Others as stated in the Works Information. Clause 11.2(2) defines Others as people or organisations who are not the Employer, the Project Manager, the Supervisor, the Adjudicator, the Contractor or any subcontractor or supplier of the Contractor. Clause 28.1 requires the Contractor to provide access to the Project Manager, the Supervisor and others notified to him by the Project Manager, to the work being done. Clause 60.1(5) defines as a compensation event, the failure of the Employer or Others to do work within the conditions stated in the Works Information. Clause 31.2 deals with the programme to be submitted by the Contractor and requires him to show the dates when he plans to complete work needed to allow the Employer and Others to do that work. It is also required to show the dates when the Contractor will need possession of a part of the Site if later than the possession date, in order to Provide the Works in accordance with the programme. Clause 43.3 requires the Project Manager to arrange for the Employer to give the Contractor use of the part of the Works which he has taken over, if it is needed to correct a Defect. Clause 80.1 lists Employer’s Risks as claims, proceedings, compensation and costs payable due to a number of matters including the use or occupation of the Site by the works or for the purpose of the works which are the unavoidable result of the works. Under Clause 83.1 the Employer indemnifies the Contractor for the Employer’s risks. Clause 94.2 allows the Employer to terminate for any reason. IChemE Red BookThe IChemE Red Book requires the Purchaser to give the Contractor possession of the Site such as to allow him to carry out his obligations under the Contract. The Contractor does not have exclusive possession but he has control of the Site and cannot withhold access to other contractors where access would impede his performance of the Contract. The Employer may stop execution of the Works at any time and have the Contractor withdraw from Site. Clause 23.1 requires the Purchaser to give the Contractor possession of the Site either on or before the date specified in the Contract, or if not so specified in accordance with the Approved Programme or if no programme in a reasonable time to permit the Contractor to perform his obligations under the Contract. Clause 1 defines Site to mean the area in which the Plant is to be constructed, together with any other areas the Contractor is permitted to use in connection with the Works and specified in Schedule 1. Clause 31.1 provides that unless otherwise agreed, the Plant, the Materials and all activities on the Site pursuant to the Contract are under the direction and control of the Contractor until the Plant is taken over by the Purchaser. Clause 28.3 requires the Contractor to observe any laws, rules and regulations insofar as applicable and any other safety regulations commonly imposed at the site of a process Plant of the kind which is the subject of the Contract. Clause 23.3 requires the Contractor to permit the Purchaser and the Project Manager and their servants and agents to enter the Site at reasonable hours to inspect, receive training or perform their functions under the Contract. Clause 23.3 also require the Contractor to permit other contractors and suppliers engaged by the Purchaser to enter the Site and execute work or deliver goods at all reasonable hours. Unless the Contract expressly provides otherwise, the Contractor is not required to allow such access as would unreasonably impede his performance of the Contract. Clause 7.1 requires the Purchaser to obtain all permissions required to be obtained from local owners of real property and any government or local authority in connection with the use of the Site for construction, operation and maintenance of the Plant. Clause 8.2 makes the Purchaser responsible for the payment of all fees, royalties and other charges payable under the terms of any licence or permission in respect of the operation or use of the Plant, to the extent not already included in the Contract Price. Clause 4.3 requires the Purchaser to give the Contractor reasonable assistance in ascertaining the extent to which local laws or regulations could affect the execution of the Works. Under Clauses 31.2 and 31.1 the Contractor is responsible for any loss or damage to Materials and Plant before the Plant is taken over, and subject thereto under Clause 31.8 is required to indemnify the Purchaser up to a sum of £5,000,000 for any loss or damage to the property of the Purchaser. Clause 36.1 provides that in the Defects Liability Period the Purchaser shall afford the Contractor the necessary access to make good Defects. Under Clause 36.9 until the issue of the Final Certificate the Contractor has a right of access during reasonable working hours to inspect any part of the Plant and take notes of the related working or performance records. Clause 43.1 provides that the Purchaser may at any time order the Contractor to cease further execution of the Works, and under Clause 43.2 is required to withdraw from Site. MF/1 (Rev 3)The provisions in the MF/1 form reflect the type of work envisaged which is essentially manufacture of Plant off-site and then delivery to site and installation, on what may in many cases be an operational site. The Contractor is required to comply with the Purchasers safety regulations. The Purchaser is required to obtain all permissions in relation to the Works. The Purchaser is required to permit the Contractor access to repeat Performance Tests and even shut down any part of the Works if necessary. The Purchaser is liable for damage which is the inevitable result of constructing the Works in accordance with the Contract. Clause 11.1 requires the Purchaser to give the Contractor access (but not exclusive access) to the Site on the date specified in the Contract. If no date is stated then access is required to be given in reasonable time having regard to the Time for Completion. Clause 14.1 requires the Contractor to submit a programme for the execution of the Works showing among other matters the dates when the Purchaser is required to provide access to Site. Under Clause 20.1 the Contractor is responsible for the adequacy, stability and safety of his operations on Site and shall comply with the Purchasers safety regulations applicable at the Site. Under Clause 5.1 the Contractor is deemed to have inspected the Site and satisfied himself as to the condition of and all circumstances affecting the Site, including any safety regulations of the Purchaser applicable thereto. Clause 1.1(u) defines Site to mean the actual place or places provided or made available by the Purchaser to which Plant is delivered or at which work is to be done by the Contractor, together with so much of the area surrounding the same as the Contractor shall actually use in connection with the Works with the consent of the Purchaser, otherwise than merely for the purposes of access. Clause 18.4 requires the Contractor, in accordance with the Engineer’s requirements, to afford all reasonable opportunities for carrying out of their work to any other contractor employed by the Purchaser and to the workmen of the Purchaser who may be employed in the execution on or near the Site of any work not included in the contract or of any contract which the Purchaser may enter into in connection with or ancillary to the Works. Clause 11.2 requires the Purchaser to obtain all consents, wayleaves and approvals in connection with the regulations and by-laws of any local or other authority which are applicable to the Works on the Site. These are to be obtained within the times stated in the Programme, or if not so stated, before the time for delivery of any Plant to the Site. Clause 12.1 provides that where the Works are to be erected outside the Contractor’s country the Purchaser will assist the Contractor to ascertain the nature and extent of and to comply with any laws, regulations, orders or by-laws of any local or national authority having the force of law in the country where the Works are to be erected. Clause 29.3 provides that risk of loss or damage to the Works pass to the Purchaser from the date of taking-over stated in the Taking-Over Certificate. Clause 35.4 requires the Purchaser to permit the Contractor to make adjustments and any modifications to any part of the Works before the repetition of any Performance Test. If required by the Contractor, the Purchaser is to shut down any part of the Works for such purpose. Under Clause 35.5 the Engineer may notify that the Purchaser requires the adjustments and modifications to be postponed up to one year. Under Clause 35.6 if the Contract provides that Performance Tests or repetitions are to be completed within a specified time, the Purchaser is entitled to use the Works as he thinks fit from expiry of such time. Clause 43.1 makes the Contractor responsible for the care of the Works until the date of taking-over stated in the Taking-Over Certificate, and responsible for making good loss or damage to any part of the Works, except for Purchaser’s Risks. Similarly under Clause 43.4 the Contractor is responsible for claims in respect of personal injury or death or loss of or damage to any property other than forming part of the Works. Clause 45.1 defines the Purchaser’s Risks to include the use or occupation of the Site by the Works, or for the purposes of the Contract. It includes interference with any right of way, light, air or water or with any easement, wayleave or right of a similar nature which is the inevitable result of the construction of the Works in accordance with the Contract. Purchaser’s Risks also includes damage which is the inevitable result of the construction of the Works in accordance with the Contract, and also use of the Works or any part thereof by the Purchaser. JCT 1998The JCT 1998 Forms are intended to be used in building works. The Employer is required to give the Contractor possession and this appears to be exclusive possession, with a right of access to the Architect so that they can carry out their function. JCT 1998 does not state the degree of interference allowed by others, but work by others is to be carried out only with the consent of the Contractor unless specified in the Contract. 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 entitled payment of loss and expense. Clause 23.1.1 requires the Employer to give to the Contractor possession of the site. Under Clause 23.1.2 the Employer may defer the giving of possession for a period not exceeding 6 weeks, if the Appendix states that Clause 23.1.2 applies. Clause 18.1 requires the Contractor to give his consent if the Employer wishes to take possession of any part of the Works before the date of issue by the Architect of the certificate of Practical Completion. Clause 23.3.1 provides that for the purposes of Works insurances the Contractor retains possession of the site and the Works up to and including the date of issue of the certificate of Practical Completion and subject to Clause 18 the Employer is not entitled to take possession of any part of the Works until that date. Clause 23.3.2 does allow the Employer to use or occupy the site or the Works whether for the purpose of storage of his goods or otherwise, but only with the consent in writing of the Contractor. Clause 13.1.2 defines variations to the contract to include changes to obligations or restrictions imposed by the Employer in regard to access to the site or use of any specified parts of the site and limitations of working space or working hours. Clause 25.4 lists the Relevant Events which may entitle the Contractor to extensions of time and Clause 26.2 the list of matters which may entitle the contractor to payment of loss and expense.
Clause 29 deals with work carried out by the Employer or persons employed or engaged by the Employer for work not forming part of the contract. Where the Specification/Schedules of Work provides such information as is necessary to enable the Contractor to complete and carry out the Works in accordance with the Conditions, then the Contractor is required to permit the execution of such work. Otherwise the Employer may arrange for the execution of such work only with the consent of the Contractor. Clause 11 provides that the Architect and his representatives shall at all reasonable time have access to the Works, subject to such reasonable restrictions of the Contractor as are necessary to protect any proprietary right of the Contractor. Clause 20.1 is an indemnity by the Contractor to the Employer for personal injury or dearth arising out of or in the course of or caused by the carrying out of the Works. Clause 20.2 is a similar indemnity for injury or damage to property, but only to the extent that this is due to any negligence, breach of statutory duty, omission or default of the Contractor, but under Clause 20.3.2 property does not include the Works. Express Terms of SubContractsWhere work is subcontracted, the Contractor will normally have possession of the overall Site and the SubContractor’s work will need to be carried out under the Contractor’s site regulations. The issue in subcontracts will then be the extent of possession provided by the Contractor. Normally the subcontractor will be required to work with other contractors with no guarantee of continuous working, although this will depend upon the circumstances and the details of the SubContract. CECA Blue Form 1998The CECA Form limits the Contractor’s liability to the SubContractor to the Employer’s liability to the Contractor. The Contractor has full control of when the SubContractor has possession of the Site. Under Clause 5(2) the Contractor is required from time to time to make available to the SubContractor such parts of the Site as are necessary to enable the SubContractor to execute the SubContract Works, but is not bound to give the SubContractor exclusive possession or exclusive control of any part of the Site. Clause 5(1) requires the SubContractor to observe the same hours of working as the Contractor and comply with all reasonable rules and regulations of the Contractor governing the execution of the Works. Under Clause 5(3) the SubContractor is required to permit the Engineer and the Contractor during working hours to have reasonable access to the SubContract Works and to the places on the Site where work is being executed. Clause 12(1) is an indemnity by the SubContractor to the Contractor against all liabilities to other oersons for bodily injury, damage to property or other loss which may arise out of or in consequence of the execution, completion or maintenance of the SubContract Works, except where caused solely by the wrongful acts or omissions of the Contractor. By Clause 12(2) the Contractor counter-indemnifies the SubContractor to the extent that the Contractor is indemnified by the Employer under the Main Contract. DOM/1DOM/1 is similar to the JCT 1998 forms. Clause 4.1.1 requires the SubContractor to carry out and complete the SubContract Works in conformity with all reasonable directions and requirements of the Contractor regulating for the time being the due carrying out of the Works. Clause 11.3 provides that the Contractor may give an extension of time due to an act, omission or default of the Contractor or a Relevant Event. Clause 11.10 defines Relevant Events to include at Clause 11.10.11 the carrying out by a local authority or statutory undertaker of work in pursuance of its statutory obligations in relation to the Works, or the failure to carry out such work. A further relevant Event is the failure of the Employer to give in due time ingress to or egress from the site of the Works (Clause 11.10.12) and this event may also entitle the SubContractor to payment of loss and expense (a Relevant matter under Clause 13.3.6). Similarly the SubContractor may be entitled to extension of time for any deferment by the Employer in giving possession to the Contractor, if Clause 23.1.2 of the main Contract Conditions apply (Clause 11.10.13) as well payment of loss and expense (Clause 13.1) Similarly the SubContractor may be entitled to extension of time due to the execution of work not forming part of the main Contract by the Employer himself or the failure to execute such work, and to payment of loss and expense (Clause 13.3.4). Clause 25 allows the Contractor and the Architect at all reasonable times to have access to any work which is being prepared for or will be utilised in Subcontract Works. Under Clause 33.1.1 neither the Contractor nor the Subcontractor are entitled to make any claim upon the other for any loss and/or expense due to strikes or lockouts. Under Clause 33.1.2 the Contractor is required to take all reasonably practicable steps to keep the site open and available for the use of the Subcontractor. |