18/01/2013
Heavy snow is forecast around the country over the weekend with up to 30 cm expected on higher ground. While this may bring delight to children whose schools are closed, if you are an employer under a building contract, you may be wary of contractors seeking to blame delay on the current weather and claiming the extra cost of those delays under the terms of the relevant building contract.
At a time when contractors are under cost pressure, a prudent contractor will certainly be checking their building contract to find out whether they are entitled to any such extension of time and/or loss and expense as a result of such weather. Although many standard form contracts do make specific provision for adverse weather conditions, it will often be difficult for a contractor to satisfy the contractual requirements needed to claim relief. Generally, a contractor will be assumed to have taken into account the potential weather which may occur at any given time of year in its programme. However, where there are very severe weather conditions, it is possible that this risk may shift to the employer.
JCT 2011 lists "exceptionally adverse weather conditions" as a Relevant Event which may give rise to an extension of time. However, the same is not listed as a Relevant Matter and so there is no entitlement to loss and expense. The architect decides what counts as sufficiently adverse. The meaning of "exceptionally" indicates that the conditions must be interpreted by reference to the kind of weather which could be expected at the site at the time the delay occurs. It may be necessary to look at local weather records to come to the conclusion as to whether the weather was indeed exceptional for the time of year. The contractor will need to provide the appropriate weather records and also its site records demonstrating which activities were prevented from being carried out. In recent years, we have experienced extremes of weather and it may be difficult to argue that the current conditions are exceptional.
The approach under JCT is more loose and subjective than under NEC3. NEC3 provides for “weather measurements” to be recorded in a calendar month and at the place set out in the Contract Data. The weather measurements to be recorded relevant to snowy conditions include the number of days where the air temperature of less than 0ºC and the number of days with snow lying at a specified time of day. To be entitled to an extension of time (or "compensation event" under the NEC) the weather must be shown to have occurred on average less frequently than once in ten years. It is only the extra number of days of snow or freezing temperatures over and above the average which will entitle the contractor to a compensation event.
However, if successful, the contractor may be entitled to time and money in contrast to the approach under JCT. Nevertheless, the way in which NEC3 deals with snow is often considered by contractors to be problematic as there is no reference to the amount of snow which has fallen i.e. there is no distinction between light snow which may not affect operations and heavy snow which may make activities on site impossible. In addition, the location of the weather station from which weather is measured may be several miles away and not accurately reflect the amount of snow actually on the site.
So, if your contractor decides to stay at home and build a snowman instead of your building, unless they have swotted up on snow records from previous years and are confident that the current conditions are indeed sufficiently out of the ordinary, they may regret those actions later!
