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Measuring the environmental performance of a building through BREEAM

09 May 2016 #Construction


Clauses which deal with BREEAM requirements are commonly used in professional appointments and building contracts. This article summarises what BREEAM is and what parties to a professional appointment or building contract should consider when using BREEAM.

Increasing awareness of sustainability by government, business and consumers pose challenges for the construction industry. There are a number of assessment tools and standards available to help assess environmental performance - one of these assessment techniques is BREEAM.

BREEAM is the Building Research Establishment’s Environmental Assessment Method which sets best practice standards for the environmental performance of buildings. BREEAM is a key driver of sustainability in the construction sector. Globally, there are more than 542,300 BREEAM certified developments and almost 2,239,300 buildings have been registered for assessment since it was launched in 1990.

The BREEAM rating

The BREEAM assessment process evaluates the procurement, design, construction and operation of a development against targets that are based on performance benchmarks.

Assessments are carried out by trained BREEAM assessors and a development can be given a BREEAM score of Pass, Good, Very Good, Excellent and Outstanding against the following categories of environmental impacts:

  • Energy
  • Materials
  • Transport
  • Health and Wellbeing
  • Management
  • Waste
  • Innovation
  • Pollution
  • Water
  • Land Use

 

 

Within every category, developments score points for achieving targets, and their final total determines its overall BREEAM rating.

BREEAM schemes

Depending on the development life cycle stage, there are different schemes for each life cycle stage which include BREEAM Communities, BREEAM New Construction, BREEAM In-Use and BREEAM Refurbishment and Fit-Out.

Benefits of BREEAM

Cost is usually a factor in deciding whether or not a developer will use a BREEAM scheme. Whilst there may be an increased capital cost to a building because of the enhanced standards promoted by BREEAM, sustainable developments offer value in many ways. For example, reduced operational costs, helping to limit investor and developer risk, making a building more attractive to let, sell or retain and a more productive and healthy workplace.

A green building may also be more capable of meeting current regulatory requirements on the environmental performance of buildings (such as the energy and water usage aspects of the Building Regulations) and more likely to fulfil a business’ environmental policies.

BREEAM also allows clients and project teams to be certain that the required standard of environmental best practice is being adopted on their project.

BREEAM in construction contracts

There are a number of ways in which BREEAM requirements can be introduced into a construction project. Clauses dealing with BREEAM requirements can be found in professional appointments or building contracts. Technical documents may also refer to BREEAM.

  • Professional appointment

Professional appointments require a consultant to exercise a required level of skill, care and diligence when performing services and adhere to any approved designs or specifications.

BREEAM clauses in professional appointments require a consultant to perform its services so that a specified BREEAM rating is achieved. With such a clause the consultant has a legal obligation to deliver the required BREEAM level. However, the obligation should not be absolute and should be subject to the consultant’s exercise of skill, care and diligence.

  • Building Contract

Most building contracts include a general obligation on the contractor to carry out and complete the works in accordance with specified contract documents. The employer’s requirements and the contractor’s proposals, for example, will set out the required BREEAM level. A contractor will also have an obligation to exercise skill, care and diligence when carrying out any design.

BREEAM clauses in building contracts require a contractor to carry out the design / construction of the works so that a specified BREEAM rating is achieved. With such a clause a contractor may have a legal obligation to deliver the required BREEAM rating. However, the obligation will not generally be absolute and will be subject to the contractor’s exercise of skill, care and diligence.

A contractor may only agree contract documents that refer to a ‘target’ BREEAM level rather than any statement that could create an obligation to achieve a particular level.

However, a building contract may provide for liquidated damages to be payable if the BREEAM rating is not achieved.

  • Technical documents

Technical documents such as the professional team’s scope of services, the specification, employer’s requirements, contractor’s proposals, drawings or bills of quantities may incorporate the requirements of a BREEAM level. If including BREEAM requirements in technical documents it is important to ensure consistency between the technical document and the professional appointment / building contract.

What to consider when using BREEAM

  • for certainty, always identify the particular BREEAM scheme that applies to the project;
  • a client should include the BREEAM assessor in a schedule or identify the BREEAM assessor as a member of the professional team so each consultant / contractor is under an obligation to co-operate and co-ordinate with the BREEAM assessor;
  • employers should ensure that BREEAM clauses in professional appointments / building contracts do not conflict with the requirements of the contract documents;
  • developers should understand the risks when targeting a particular BREEAM level. For example, failing to achieve an agreed BREEAM level may result in non-completion of a sale, lower rent or non-payment of part or all of a developer’s profit, a dispute with a design and construction team about who is responsible for the additional cost of achieving a particular level and reputational risks;
  • consultants with a design role should understand the risks when targeting a particular BREEAM level. For example, underestimating the additional time taken to obtain necessary BREEAM ratings when a fixed fee has been agreed, a dispute with the contractor or members of the design team about who is responsible for the additional cost of achieving a particular level and reputational risks; and
  • contractors should understand the risks when targeting a particular BREEAM level. For example, having to spend additional time and money to meet a particular BREEAM level, a dispute with members of the design team about who is responsible for the additional cost of achieving a particular level and reputational risks.
Clarkslegal, specialist Construction lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Construction matter please contact Clarkslegal's construction team by email at constructionsector@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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Victoria  Kempthorne

Victoria Kempthorne
Senior Solicitor

E: vkempthorne@clarkslegal.com
T: 0207 539 8062
M: 0791 783 1789

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Construction team
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