JCT consultation: A sustainable strategy

The report by the economist Sir Nicholas Stern predicted environmental armageddon if mankind carries on the way it is. That included building the way it does. Construction is a substantial part of the UK economy, about 10% by some measures, and changes to its processes and outputs are essential if this environmental catastrophe is to be avoided. The Code for Sustainable Homes and the recent report from the House of Commons’ Public Accounts Committee, entitled Building for the Future, clearly shows the importance attached to it by parliament. It also shows the limited progress made by government departments and agencies, which spend about £3bn a year on new-build and refurbishments.

Perhaps one should not be too surprised because despite the extensive literature on the meaning and content of sustainability, there is much uncertainty as to how best to proceed on a subject that has few boundaries. It is not an easy concept to grasp, nor is it easy to apply, but both are essential.

A coherent strategy that addresses the high-level issues necessary to secure a future would be highly desirable but the reality is that we are unsure about the impact of many of the potential changes. Witness, for example, the debate surrounding the use of biofuels in the reduction of emissions.

The government has sought to improve sustainability through persuasion, through tax and fiscal incentives, and through statutory regulation such as the planning system and the Building Regulations. There is, however, a risk that some of these approaches are inadequate and some too heavy-handed.

Organisations are recognising the need for sustainability but many remain unclear how to tackle the issue. Most see it as synonymous with the environment, but it actually rests on three pillars: economic, environmental and social. There are few rules for getting the balance right, and no accepted standards. Progress has been chiefly by trial and error.

Most people are concerned that many matters remain outside their control, and as the individual’s overall contribution is likely to be small, they often feel it will not matter too much if they leave it to others in general and the government in particular. This would be wrong; we should not ignore the possibility of contributing, however small that might be.

With this in mind, JCT set about considering how it might play its part in promoting sustainability and in securing the sustainability objectives of parties to construction contracts. These matters will affect all of those in construction and will take on particular significance for those on the demand side of the industry.

Is there a remedy for failure to meet the requirements of such a provision? Would these be legal or commercial remedies, or both – and will provisions only be aspirational?

JCT hypothesised that construction contracts should put sustainability requirements on contracting parties. These could apply to the specification of both building products and the construction process, and apply along the supply chain.

JCT recently invited members of the industry to discuss this issue, and found that there was support for introducing either contractual provisions or guidance on sustainability. The next stage is to ascertain whether this is a general view and, if so, the possible nature of such obligations and guidance.

We also want to explore how professional advisers can be encouraged to give priority to sustainable design features which, in turn, will likely effect a change in procurement.

JCT believes that contract provisions and guidance have a role to play to further the cause of sustainability in the industry. However, a balance needs to be found between these and the legislative regime.

Neither should be overly prescriptive but determining the correct level of detail will be a challenge, with questions such as: Is it possible to draft adequately a sustainability objective? How effective might a provision covering sustainability be? Is there a remedy for failure to meet the requirements of such a provision? Would these be legal or commercial remedies, or both – and will provisions only be aspirational?

Further consultation by JCT, which readers are invited to participate in, will explore these and other questions and if it confirms the initial consensus, JCT will provide the means by which the supply and demand sides of the construction industry can tackle sustainability within the context of construction contracts.