Adverse weather and construction contracts

Strong winds, storms and even snow! This just sums up the adverse weather for the past fortnight. Many projects could be hindered or, at worst, even terminated. Considering the adverse weather, what should contractors do to ensure they do not fall behind on their project?

If a contract remains silent on adverse weather delays, it is the responsibility of the contractor to ensure they take steps to deal with any foreseeable delays. For projects governed by a JCT form of contract, a contractor will usually be entitled to an extension of time if they give a notice to the employer of a “relevant event” which is, or likely to, delay a project.

The term ‘relevant event’ is defined to include ‘exceptionally adverse weather conditions’. Contractors and employers should therefore be aware that the weather must not only be adverse but “exceptional”. Unfortunately, a JCT contract does not define what constitutes “exceptional” adverse weather conditions. This would leave scope for the contract administrator or the employer to determine this issue.

How should you deal with adverse weather conditions?

Risk assessment: At the pricing stage of a project, parties should be open to the possibility of adverse weather impacting their programme of works. If works will commence during the winter period, parties should take this into consideration before the pre-construction phase.

Collect weather data: Contractors should specify where they will monitor and record weather data from the site and compare this data with the Met Office. This should include the amount of rainfall, the duration of rainfall, wind speed, volume and duration of snow and so-forth.

Provide adequate notices: Contractors must review their contracts to check the correct procedural requirements to give notices to the employer for an extension of time. Contractors should check when a notice should be provided, notably ahead of time, and how a notice should be given (by way of email or by letter). Failing to follow the correct procedure of notification may leave a contractor in a difficult situation.

Record keeping: Contractors will have to prove that exceptional adverse weather conditions was the cause of the delay. To avoid disputes, record keeping is fundamental. Contractors should keep a log of photos from site visits, video footage of the adverse weather and an accurate record of weather temperature during the adverse weather.

If you have any questions regarding extensions of time or advice on how to request an extension of time, please contact our expert Construction team.

I am a solicitor specialising in construction law and I am based in our Chelmsford office. I can be contacted on 01245 453804 or [email protected].