Construction nightmares this Halloween

Love it or hate it, it is hard to deny that Halloween has become increasingly popular in the UK. Whether you will be taking the children trick or treating this 31 October, or attending a costume party, it is difficult to completely avoid the phenomenon (even if just interacting with the shops and businesses promoting the occasion). That said, nobody wants a spooky fright showing up on their construction project.

Skeletons

It is not unusual, depending on a development’s size and location, to encounter human skeletal remains as part of a construction project. Famously, in connection with the Crossrail development for the Elizabeth Line in London, more than 3,000 skeletons were brought to light at one site (the former New Churchyard burial ground used by the Bedlam hospital), and more than 500 skeletons dating back to medieval times were unearthed as part of the development of a leisure centre forming part of Elephant and Castle’s £1.5bn regeneration scheme.

Sometimes remains may be expected – at Elephant and Castle, archaeologists knew a graveyard dating back to the Middle Ages was originally on the site. At other times they can come as a complete surprise. Generally, if you discover human remains on site your first port of call will be a specialist archaeologist. Provided they are content that the remains are suitably ancient that it will not be a police matter, then excavation of the remains will be the next step.

There may be a need to obtain the appropriate legal consents from either the Church of England and/or the Ministry of Justice. However, construction does not always need to stop while archaeologists are on site. Excavation can also be done in phases, integrating with the construction programme.

Newts, bats and mice

Encountering a protected species during a development is typically a cause of terror for contractors and developers. Generally ecological surveys will be undertaken as part of a planning application and so developers can usually take the impact of a conservation designation on development into account when acquiring a site. However, a developer can acquire a development site only to discover, after completion, that protected species have migrated onto the site.

The specific protected species found will depend on the location of the development – great crested newts are a possibility for waterside developments, and dormice and bats near woodland. The implication of encountering protected species is that licences may be required from Natural England for their removal.

There is inevitably an impact on the development timescale, to allow for negotiation with and supervision by the regulators, and because of any seasonal limits on works. It is important to treat encountering wildlife on site seriously – carrying out development activity that affects a protected species without a licence, or in breach of the terms of a licence, can be a criminal offence.

Avoiding nightmares

The above scenarios can turn a promising project into the stuff of nightmares, so it is imperative that developers and contractors manage their risk associated with a disturbing discovery on site at every stage of a development. This means ensuring a detailed title investigation is undertaken along with the appropriate searches and enquiries, so that any indication a problem could be encountered at site is spotted early.

It is also important to seek advice about how risk can be allocated within the building contract between a contractor and employer. The base position within an amended JCT Design and Build Contract, 2016 edition is that it is the employer’s responsibility to obtain all necessary planning consents and that the employer takes all ground condition risk.

Further, in relation to antiquities or other objects of interest found on the site which would apply in the case of historic skeletons, the JCT makes express provision for dealing with this situation. The contractor would be entitled to an extension of time as well as loss and expense. The standard JCT position is amendable so that, for example, it could include a clause setting out the extent of the contractor’s responsibility for the existing site conditions, or to allocate responsibility for obtaining specific consents between each party or move the antiquities risk to the contractor.

Tristan Wark is a legal director in the real estate team and Joanne Kelly a partner and head of the construction team at Memery Crystal.

Disclaimer: We at Memery Crystal (and our parent company RBG Holdings plc) support and encourage free/independent thinking in relation to issues which are sometimes considered to be controversial subject matters. However, the views and opinions of the authors of articles published on our website(s) do not necessarily reflect the opinions, views, practices and policies of either Memery Crystal or RBG Holdings plc.

Building Magazine – Construction nightmares this Halloween

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