Professional Negligence in Construction
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CHAPTER 5
Common issues in a construction project
Common issues in a construction project
- Introduction 79
- Section A: site investigation and specialist survey 80
- Section B: planning and regulation 82
- Section C: budgets and estimates 83
- Section D: design 87
- Introduction 87
- Whose obligation? 87
- The standard to be achieved 88
- Achieving the client’s objectives 88
- Specific design attributes 90
- Coordination and integration of design 92
- Novel design 93
- The obligation of the reviewer 94
- Inspection or supervision by the designer 95
- Approval of defective design 95
- Section E: the tender process 96
- Introduction 96
- Specification 97
- Bills of quantities 97
- Selection of contractors 98
- Construction contracts 98
- Other contracts 99
- Section F: contract administration 100
- Introduction 100
- Familiarisation 101
- Providing information and giving instructions 102
- Certification 103
- Inspection 106
- Reporting to the client 110
- Keeping records 110
Introduction
5.1 Claims against construction professionals cover an enormous range of circumstances and, because they generally turn upon findings concerning the exercise of reasonable skill and care, they are highly fact sensitive. The outcome of one reported case should be taken as no more than an illustration of how the court might treat another case with broadly similar facts.Page 80
Section A: site investigation and specialist survey
5.4 One of the earliest tasks on a construction project is the measurement and investigation of the site. This involves (1) physical measurement and survey of the site, its boundaries and any buildings situated within it and (2) investigation and ascertainment of the ground conditions. 5.5 However, the obligations of construction professionals engaged at this early stage may not be concerned with the actual measurement or investigations. They may be concerned with obtaining of such information and the analysis of what it shows. The client may have undertaken a rudimentary survey of the site (probably for valuation purposes) but the architect or project manager will need to decide what kind of detailed survey is required. There may be historic records of the site conditions (particularly if the site has previously been the subject of development) but the project manager or engineer will need to decide precisely what further investigations are required and indeed, having obtained these investigations, to make an assessment of what further inquiries are prompted. 5.6 All of these processes have to be undertaken with an appreciation of the client’s ultimate intentions for the site and an understanding of the outline design (such as it is at this stage). Many of them have to be undertaken in conjunction with an ongoing planning process (see below). A surprising number of claims against architects, engineers and project managers have their origins in mistakes and missed opportunities in this early stage. 5.7 It might be thought that an assessment of the physical constraints of the site would be an area unlikely to throw up complexity. However, that would be to underestimate the economic importance of site constraints in construction projects. 5.8 At its simplest level, the physical boundaries of the site may constrain the size and footprint of the building which the client may wish to erect. Planning or other legal restrictions may limit the land available for construction.1 Adequate site access, which means adequate access to the highway may impose further constraints. The proposed process of construction must be thought through and adjusted to the site. All construction projects have a critical path and the length and vulnerability of the critical path equates to cost. Particularly for larger projects, a well-planned sequence of construction involves aPage 81
Page 82
Section B: planning and regulation
5.13 Planning consultants are not treated as construction professionals for the purposes of this work, but architects are frequently concerned with planning applications and project managers and any construction professional undertaking contract administration duties needs to be au fait with the planning permission for the development in respect of which it is engaged and to have a reasonable understanding of what planning permissions require. 5.14 Nor is planning the only set of regulatory restrictions which affect the way in which development is undertaken. Regulation, both in the form of building regulation and environmental regulation is an increasingly important aspect of modern construction projects.6 As with delegation to specialists, the construction professional is expected both to recognise and appreciate the importance of all of these forms of regulation and to recognise and appreciate the limitations of its own expertise so that, in an appropriate case, the client can be advised to obtain specialist assistance. 5.15 Until relatively recently it was part of the architect’s function in respect of all kinds of construction project to advise the client as to planning and to act as the client’s agent in respect of seeking planning permission. That remains the case for the vast majority of small and medium sized projects, but recent years have seen a trend for planning applications to be undertaken by specialist consultants working closely with the project architects or for the project architect to be part of a multi-disciplinary practice which includes specialists in planning. 5.16 If the obtaining of planning permission is within the architect’s scope of services it will be expected to familiar with the process of planning applications, to understand the operation and effect of the various local and national policies and to engage in such consultation and discussion with the planning authority as would be advised or undertaken by a reasonably competent architect holding itself out as being able to offer planning services. 5.17 The precise standard of care to be applied is a matter of some difficulty (a fact which speaks to the problem created by an emergent profession). In Middle Level Commissioners v Atkins Ltd 7 a multidisciplinary practice was said to have failed adequately to consider the need for a Certificate of Proposed Lawful Use. Akenhead J grappled with the difficulty of assessing the standard of care to be applied in these terms:As was accepted in argument, there is currently no recognised profession of planners as such, although it is clear that many planners are qualified professionals and very experienced in planning matters. For instance, many architects and surveyors have expertise and experience in planning, as do some engineers. However, there are experienced planners employed by local authorities and other firms, some (and perhaps many) of whom may not hold other professional qualifications but are extremely experienced in planning. This therefore is a case in which one must recognise that there is a range of qualifications and/or experience against which the Court must seek to judge whether the Atkins planners fell below the standard to be expected of reasonably careful planners.