UK Update: Construction Contracts – using the JCT/SBCC Supplementals for sustainable development

Construction sector challenges

It is estimated that the built environment is responsible for between 39 to 45% of the United Kingdom’s total carbon emissions. Even at the lower end of this range, this is a daunting percentage and it’s accepted industry-wide that we need to work together to reduce that figure.

We have a renewed focus on this issue through COP26 and excellent initiatives such as the Construction Industry Council’s Carbon Zero Action Plan and the efforts of the Chancery Lane Project to prepare a Net Zero Toolkit: which is a free to use bank of exemplar clauses aimed at incentivising sustainability and achieving carbon reduction.

The construction sector is today facing many unprecedented challenges: material shortages and price increases; the effects of the Covid-19 pandemic; a labour shortage (whether through Brexit or a lack of apprenticeships); and the risk insolvency exacerbated by tight margins and fierce competition for projects.

Against this backdrop, it is understandable that some contractors and employers might be reticent about imposing too many new and detailed provisions directed at sustainability for fear of stressing an already stretched supply-chain.

JCT/SBCC suites already contain a sustainable and environmental option

While it’s fully accepted that the carbon emission crisis is immediate, a small step towards sustainability is better than none at all. The JCT/SBCC suite of contracts already offers that small step, through the Supplemental Provision: “Sustainable development and environmental considerations”. Sustainability provisions were introduced 2009 Revisions in the JCT/SBCC and these have been carried through to the current 2016 Editions.

This Supplemental Provision firstly encourages the contractor to suggest economically viable amendments which will result in an improvement to the environmental performance of the Works (which will be instructed either as a Change or Variation depending on the type of contract used), and secondly it obliges the contractor to supply information on the environmental impact of contractor selected goods and materials. If this information is given at the right time during the design and construction phases, armed with this information the employer is empowered to consider changes that could promote a circular economy or are Cradle to Cradle Certified®.

The option needs selected and acted on

At present this Supplemental Provision is only automatically applied if the underlying client is a Local or Public Authority and the contract was let through public procurement. Even when this Supplemental Provision is selected, it’s probably fair to say that in many projects, the underlying clauses are rarely acted upon.

I think the time is right to promote greater use of this Supplemental Provision in all contracts, not just those involving public sector employers. To give the sector any real chance of reducing that carbon emission figure, take that first step and select this Supplemental Provision, and perhaps as equally important promote, monitor and encourage the active use of these clauses so we turn the focus on sustainability.

By James Forbes, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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