If you are thinking of having works carried out on your property or procuring works as an agent on behalf of clients, you will need to appoint a building contractor and, in some circumstances, a professional team.
This may not be as easy as it sounds and there are a number of key points to consider before the works are started. James Badger, Senior Associate and Liz Rowen, Legal Director and Head of Residential Property Management, at UK-top 200 Yorkshire law firm Keebles LLP, outline the key considerations and why they are important.
Appointing a building contractor
When embarking on a construction project, the natural starting point for many is, “I need some building works, so I need to appoint a building contractor”. For many, this is not actually correct. Before contacting any building contractor, it is important to consider whether the works require planning permission, often procured through an architect, and whether there are any structural factors that need specialist advice.
Before any building contractor can tender for the works, he or she needs to be clear on what the works involve. Without this information, a building contractor is unlikely to be in a position to price the works due to the uncertainty over what the works actually involve.
Once a building contractor has received the required information and a price has been agreed, it is important that a building contract is entered into.
For works to buildings that are not intended to be used for residential occupancy (the application of which is sometimes not straightforward and is therefore outside the scope of this article), the Housing Grants, Construction and Regeneration Act 1996 (‘the Construction Act’) applies. In short, this means the building contract must contain an adequate payment mechanism and appropriate adjudication provisions. If it does not, the Act’s provisions, in whole or in part, are implied into the building contract.
Identifying and appointing a professional team member
The size of the project, including the scope and value of the works, is likely to dictate what professional team, if any, is needed. For instance, on a small project where planning permission or a design scope is needed, an architect is likely to be required. If the works relate only to structural matters, then a structural engineer is likely to be needed to advise on the necessary calculations.
For larger projects, in addition to any architect and structural engineer, a quantity surveyor, mechanical and electrical engineer, contract administrator and/or CDM advisor (see below) may be required. The usual way to appoint these professional team members is through appointment documents.
When dealing with projects that fall within the remit of the Construction Act, it is also important to ensure compliance with the Construction Act’s requirements in these appointment documents. Appointment documents are often entered into to set out the risks and liabilities between the parties and to ensure compliance with the Construction Act’s provisions.
Construction, Design and Management Regulations 2015 (CDM Regulations)
The CDM Regulations are a key piece of health and safety legislation and apply to all construction projects, whether domestic or commercial. It is beyond the scope of this article to address these in any detail but you, as a client procuring the works (whether domestic or commercial), are bound by the CDM Regulations meaning specialist advice may be required through the appointment of a CDM advisor.
The CDM Regulations also apply to all contractors and designers involved in the project and breaches of them can carry both civil and criminal prosecutions.
Building contract and appointments
Irrespective of the size of the project, it is strongly advised that appropriate construction advice is always obtained, and construction contracts are put in place.
