Search

How can we help?

Icon

Construction projects and adverse conditions: What are the rules?

Whilst it’s not unusual for adverse weather to affect the UK, it always seems to come as something of a surprise to us. However, what does ‘adverse weather’ actually mean in law? How do you determine any entitlement to money or time? And what should you do if your project suffers delay as a result of bad weather?

Construction projects are often victims of the elements and determining where risk lies can be a major cause of disputes. Adverse weather may entitle a contractor to an extension of time or compensation, depending upon the contract terms. However, correct identification and notification of delay and disruption are crucial to ensuring entitlement.

JCT

The JCT suite of contracts class ‘exceptionally adverse weather conditions’ as a Relevant Event. This has the potential to entitle you to an extension of time. Unfortunately, the JCT do not define what ‘exceptionally adverse weather conditions’ are, and there seems to be no generally accepted definition. Generally, courts and tribunals refer to adverse weather as weather which exceeds the long-term average for the time of year and location.

In Walter Lawrence & Son v Commercial Union Properties, the court made clear that the weather must be exceptional. In that case, the court referred to Meteorological Office records going back 30 years to make this assessment. Additionally, the analysis of the adverse conditions was carried out when the works actually took place, not when they were scheduled to do so.

NEC

Under NEC contracts, adverse weather can be treated as a Compensation Event. In contrast to the JCT, NEC does provide a definition for such conditions. NEC defines adverse weather as weather which on average occurs less than once in ten years within that calendar month. The exact definition is found in Clause 60.1(13) and is quite precise in setting out that only the difference between those conditions that ought to have been reasonably allowed for, and a ten-year event are classed as ‘adverse weather’.

Given the above, would a storm in February count as adverse weather? If your project has suffered delay and disruption, what steps should you take?

Construction projects are often victims of the elements and determining where risk lies can be a major cause of disputes.

Check the Contract and Keep Records

In most construction contracts, the contractor will bear the risk of any disruptive weather that falls outside these definitions. It is important that before entering into any contract, you have understood the allocation of risk. If the contract is silent on weather, the contractor may be responsible for the risk, no matter how bad the weather.

Another consideration may arise if the adverse weather occurs after the contractual completion date of the construction project. In such cases, the contract may not allow for any extension of time or compensation. Again, this will need to be checked with the exact terms of the contract.

Whatever the form of contract, the first steps you should take are to follow the notification procedures set out in your contract. Record and notify within any required timeframes the full details and impact of any adverse conditions that might comply with definitions prescribed in your contract. Ensuring you comply with your obligations under the contract is critical for success.

A major difficulty with disputes arising from weather conditions can be assessing the impact on the delay. Therefore, it is important that you keep project records accurate and up to date in a form that will enable you to demonstrate the link between cause and effect. Be sure to record any impact the weather has on progress.

You must be able to show that the weather caused a delay. If you cannot show the delay was caused by the weather conditions, you will not be able to claim. Under JCT, if you can demonstrate this delay, you will be able to claim for an extension of time, but not for money. NEC, in contrast, does allow you to claim for time and money.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 01 June 2023
  • Employment

Facts employees should know about their personal data

We previously published an article on facts an employer should know about holding personal data, so it is only fair that we also write about the other side of the coin – facts employees should know as individuals whose personal data is held by their employer.

art
  • 01 June 2023
  • Immigration

What is the Immigration Skills Charge (ISC) and how much do you have to pay?

The Immigration Skills Charge (ISC) is a levy on companies who sponsor migrant workers. This levy was imposed on 6 April 2017. The Government states that the charge has been levied to contribute towards addressing the skills gap in the local economy.

art
  • 26 May 2023
  • Employment

Avoiding discrimination in flexible working requests

The right to request flexible working is currently available to employees with at least 26 weeks’ service and is set to be extended further under new Government reforms.

art
  • 25 May 2023
  • Corporate and M&A

Management Buyout – Top 5 things to consider

A management buyout is a financial transaction in which a member of the management team purchases the company from its registered owner. MBO’s usually occur in private companies in an effort to enhance profitability and simplify strategies.

art
  • 25 May 2023
  • Employment

Carer’s Leave Bill set to become law

On 19 May 2023, the Carer’s Leave Bill had its third reading in the House of Lords, and upon receiving Royal Assent, will become law. There is not yet a date for the implementation of this bill, however it is likely that this will happen relatively quickly upon receiving Royal Assent, so is definitely one to keep an eye on.

art
  • 18 May 2023
  • Immigration

Navigating SOC Codes

When it comes to UK immigration, understanding the intricacies of the system is vital. One significant aspect of the process revolves around Standard Occupational Classification (SOC) codes. SOC codes play a crucial role in determining the eligibility for an individual to apply for a work visa, assessing skill levels, and matching individuals to appropriate job roles.