Brexit developments, EU tackles more emissions, Environment Agency enforcement and sanctions policy
Welcome to the fourth edition of our monthly environmental law newscast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this bulletin, we consider some of the key legal developments in the environmental law field in April 2018, including:
• Brexit developments;
• EU tackles more emissions; and
• Environment Agency enforcement and sanctions policy
To listen to the audio file, press play below or to download as audio only, click here.
Brexit developments—tune in from 0.29 secs
Michel Barnier, the EU’s chief negotiator, recently stated that to hold the UK to EU environmental standards, Brussels may insist on a ‘non-regression’ clause in any future deal after Brexit, rather than rely on Michael Gove’s pledges over the environment.
Christopher takes us through these latest Brexit developments and discusses what the implications of a ‘non-regression’ clause might be – for example in terms of how such a clause would be policed and what this could mean for the development of UK environmental policy in the future.
EU tackles more emissions—tune in from 3.36 mins
On the 17th April 2018, at a plenary session of the European Parliament, two draft laws with binding national emission targets were adopted.
Christopher explains which sectors, not covered by the current EU Emissions Trading Scheme, will be caught by these new laws - essentially agriculture, transport, building and waste and forestry and land-use.
Environment Agency enforcement and sanctions policy—tune in from 6.05 mins
On 11th April 2018, the Environment Agency published their enforcement and sanctions policy, combining and amending previous published documents.
Christopher discusses this new enforcement and sanctions policy, and picks up some of the points raised in the consultation response document, for example on the use of variable monetary penalties.
The Construction Industry Council (CIC) has recently published the second edition of its Building Information Modelling (BIM) protocol. Andrew Croft, associate in the construction and engineering group at Beale & Company, and lead consultant responsible for drafting the new protocol, explains the key changes that have been made.
First published on LexisPSL Construction. Click here for a free trial.
What is the protocol?
The CIC BIM Protocol is the only standard contractual protocol for use in projects using Building Information Models.
The original protocol was published in 2013 as part of the suite of BIM Level 2 documents, which support the UK government’s BIM strategy, including the mandate to use BIM on centrally procured government construction projects from 2016.
The protocol is intended to be incorporated into and appended to contracts and puts in place specific additional obligations and liabilities on the use of the BIM.
Why was a second edition published?
The use of BIM is now standard practice. The approach to BIM has developed since the original protocol was published and new standards have been released, including PAS1192-5 in relation to security.
Feedback had also been received that the original protocol, particularly in the approach to intellectual property, was not sufficiently flexible and that completing the appendices was a challenge.
The CIC was keen to promote increased uptake of the protocol and update the document to reflect industry practice. Following consultation with the Joint Contracts Tribunal (JCT), New Engineering Contract (NEC) and the construction industry as a whole, the CIC therefore published the much anticipated second edition of the BIM Protocol on 10 April 2018.
What are the key changes in the second edition?
The changes in the second edition of the protocol reflect current practices and meet industry demands while making the protocol more flexible and easier to use.
For example, the second edition is very closely aligned with PAS 1192-2 (the specification for Level 2 BIM). Rather than just referring to models, the protocol now includes obligations in relation to the sharing of all information as part of a common data environment process. The terminology has also been changed to be more consistent with PAS 1192-2.
In addition, the protocol now includes additional optional provisions in relation to security, a topical issue, to reflect PAS 1192-5.
A collaborative process to resolve inconsistencies in relation to information has also been added. Co-ordination meetings are to be attended under the protocol, and if one party becomes aware of an inconsistency it is to inform the other party.
The updated protocol no longer includes a statement that the project team member does not warrant the integrity of information provided, which reflected concerns regarding the reliability of models. The second edition instead focusses on the key reason for this concern, which is incompatibility between software used to produce and access information. This underlines the importance of the approach to the exchange of information being carefully considered and agreed at the outset of a project.
There is also more flexibility in the protocol as it ‘piggy backs’ on the underlying contract in a number of areas. This includes, for example, the standard required when producing information and the intellectual property position. This approach and the new editable appendices will make incorporating and completing the protocol a more straightforward task.
In addition, while the second edition still seeks to achieve the intention of creating a minimum set of consistent obligations across the project team, it does so without overriding the agreed contractual position. The provisions which take precedence over the underlying agreement are now limited to the obligations in relation to BIM and the appendices to the protocol.
Finally, in addition to a standard ‘enabling clause’ to incorporate the protocol, the protocol includes a suggested approach to using the protocol with the JCT suite and refers to guidance on using the protocol with NEC4 contracts (see: LNB News 16/04/2018 48), which will also promote ease of use of the protocol.
What do you think will be the impact of the second edition?
Despite recent industry progress, there is often a disconnect between the project teams’ approach to BIM and the contractual position. There is also often ambiguity as to the contractual approach to BIM. The recently published Winfield-Rock report highlighted these concerns.
The second edition has been very positively received and it is hoped that the new protocol—which is more flexible, easier to use and reflects the industry approach to BIM—will help provide additional clarity in relation to the contractual approach to BIM.
Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
LexisPSL Construction customers can find out more information in Practice Note: BIM protocols.
The Construction (Retention Deposit Schemes) Bill 2017–19 has been published ahead of its second reading, which is expected to take place on 27 April 2018.
The Construction (Retention Deposit Schemes) Bill is aimed at the safeguarding of cash retentions withheld in connection with construction contracts. It was introduced to the House of Commons on 9 January 2018 by Peter Aldous MP as a Private Member’s Bill—see News Analysis: Construction (Retention Deposit Schemes) Bill takes first steps.
Ahead of its second reading, the Bill has now been published (a copy is available here). If passed, it would add new sections 111A and 111B to the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996)—see below for more information.
The second reading will be the first time the Bill is debated, and Members of Parliament will have the opportunity to agree to or reject it in principle. While relatively few Private Member’s Bills become law, this Bill has cross-party support and Carillion’s insolvency has highlighted the risks associated with current practice.
The progress of the Bill runs in parallel with the government consultation on cash retentions, which closed on 19 January 2018 and for which the outcome is awaited (see News Analysis: Exploring possible changes to construction retentions and the HGCRA 1996). It remains to be seen what impact the consultation will have on the Bill.
Retention deposit schemes (s 111A)
The proposed section 111A of the HGCRA 1996 (clause 1 of the Bill) would require the Secretary of State, and the Welsh and Scottish Ministers, to pass regulations for the introduction of retention deposit schemes, making sure at least one or more scheme(s) is available. A ‘retention deposit scheme’ is defined as a compliant scheme which has the purpose of safeguarding cash retentions withheld in connection with construction contracts and facilitating the resolution of disputes.
‘Cash retentions’ is defined widely:
monies which are withheld from monies which would otherwise be due under a construction contract, the effect of which is to provide the payer with security for the current and future performance by the payee of any or all of the latter’s obligations under the contract.
Among other things, the regulations are to provide for the selection and appointment of a scheme administrator, funding and management of a retention deposit scheme and the mechanism by which retention deposits are released.
There is also an expanded definition of ‘construction contract’ in this context, being a construction contract as defined by HGCRA 1996, s 104 or ‘any contract created to have a similar effect to a construction contract for the purposes of withholding monies which would otherwise be due under the contract’.
Contractual requirements (s 111B)
The proposed section 111B of the HGCRA 1996 (clause 2 of the Bill) would not come into force immediately, but on a date to be specified in commencement regulations.
In relation to construction contracts entered into after the Bill has been passed, sub-section (1) provides that a cash retention clause will only be valid if:
monies are deposited forthwith in a retention deposit scheme
prior to the first withholding, the payer notifies the payee and the scheme administrator of the other’s details
Subsection (2) would (it seems) apply to construction contracts entered into prior to the passing of the Bill. It requires all existing cash retentions to be placed in a retention scheme, and for the payer to notify the payee and the scheme administrator of the other’s details. If this is not complied with, then the retention must be returned to the payee within seven working days.
A new Environment Act, Select Committees report on ‘Improving Air Quality’ and Spring Statement
Welcome to the third edition of our monthly environmental law newscast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this bulletin, we consider some of the key legal developments in the environmental law field for March 2018, including:
a new Environment Act;
Select Committees report on ‘Improving Air quality’; and
Spring Statement.
A new Environment Act—tune in from 00:30 secs
Christopher discusses the prospect of a new Environment Act, how this sits alongside pledges made in the 25 Year Environment Plan and whether there is enough time to put together a new Environment Act, that ensures equivalence in environmental protection, before the UK leaves the EU.
Select Committees report on ‘Improving Air quality’—tune in from 2:59 mins
On 8 March 2018, the joint inquiry into air quality held by four Select Committees produced its report entitled “Improving Air Quality”.
In this newscast, Christopher takes us through some of the key points of this report and considers what the Minister’s response to the Committees’ questions reveals about the government’s attitude towards some of the proposals outlined.
Spring Statement—tune in from 4:56 mins
The Spring Statement was published on 13 March 2018.
Christopher highlights what coverage the environment was given in the Spring Statement and discusses the call for evidence to tackle the problem of plastic littering and the threat that is posed to the marine environment.
If you are a Client and we have made a contract with you by electronic means you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us.
This service can be found at ec.europa/consumers/odr
Our email address is glg@hardwicklegal.com.
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The Construction (Retention Deposit Schemes) Bill 2017–19 has been published ahead of its second reading, which is expected to take place on 27 April 2018.