Time for JCT to embrace sustainability

Ask for a definition of sustainability and even the most enthusiastic advocate may become tongue tied. Most people have a pretty fair understanding of the concept, but that can still be a long way from providing a working definition that can serve as a practical guide.

Yet, with the million-and-one different problems it has to resolve on a daily basis and the constant time pressures that can preclude considered reflection, construction needs just such a practical guide.

Time to bring in the lawyers, perhaps, or at least the great and the good who between them constitute the Joint Contracts Tribunal (JCT).

It is surely a moot point whether solicitors and barristers are better at providing legal definitions or arguing about their interpretation. But the construction world revolves around its contractual arrangements. Even more pertinent, the construction world in the UK revolves around the use of JCT contracts - some 70% of construction contracts are said to be let on JCT standard forms of agreement.

Wider industry

It's clear, therefore, that the scope for the JCT, through its contractual documents, to influence the behaviour of the wider construction industry is considerable. It's also clear, according to the JCT's recent industry-wide consultation, that a large number of those involved in construction would welcome an attempt to influence the way it dealt with sustainability through incorporating the concept into its contracts. In fact, 80% of those who responded to the JCT's survey said that guidance was required for dealing with sustainability in contract documents.

"On simple analysis, it is clear that sustainability is a matter of importance, and a substantial majority of respondents thought that performance could be improved through industry specific documentation," says Peter Hibberd, JCT secretary general. "Many thought that contract conditions should be specific about sustainability performance, but not too detailed, relying upon other supporting documentation for implementation."

As far as the JCT is concerned, this is the crux of the issue: how to incorporate sustainability into a legally binding document without getting bogged down in providing an all-encompassing definition. "Sustainability is such a complex subject that there's no consensus on what it means, so we decided not to get involved in the debate about what is and isn't sustainable," Hibberd explains. "Our aim is to provide guidance to allow people to interpret how best to put sustainability into practice themselves."

The worry, he continues, is that if the wider understanding of sustainability relies in a single, centrally defined concept, what would happen if the definition turned out to be wrong? "It's best to allow the imagination of lots of people decide how best to tackle it. The drive for sustainability is greatest when people realise they can derive a competitive advantage from it."

Performance indicators

For this reason, the JCT has in fact already made its first stab at including sustainability criteria in its recently published framework agreement. "I'm confident in saying this was the first of any standard agreement anywhere in applying its mind to incorporating sustainability into the agreement," says Hibberd. "The whole point of a framework agreement is that it's along-term arrangement that includes performance indicators and continuous improvements.

"Therefore we decided to put it into a contract to see if it would work, if it could be made to work."

The result was to provoke lots of comments along the lines of 'but you can't tie down what sustainability is' or 'but you can't put it into a contract, can you'. This in turn resulted in the JCT's recent consultation. "We asked people to consider whether sustainability criteria should be in a contract, can they be in the contract, or is it all just a nonsense?"

According to Hibberd, and in spite of the inevitable difficulty concerning what does or should sustainability mean, the response demonstrated a widespread enthusiasm for references to sustainability. There were, nevertheless, divergent views on how this should be incorporated. "Those with a legal background were concerned about it being enforceable," he says. "On the other hand, practitioners and clients were more concerned about seeing a sea-change in how sustainability was perceived and thought about. The grail is somewhere between the two."

Finding this grail is the remit of the working group set up to consider how to translate this general desire into practice. "I think, and I should point out that these are not the conclusions of the working party yet, that some generic sustainability clauses will be inserted to ensure that it's considered in its widest sense, and then this will be complemented with some very specific guidance. Take waste, for example. How to deal with waste produced on a site can be incorporated into a contract."

Supply chain

Moreover, Hibberd anticipates that the process of incorporation will also be broken down into specific parts of the construction supply chain and process.

"We have to incorporate these requirements into the design stage as well as the construction process. You can't put it into the latter if it's not in the former."

Partly for this reason, he also expresses the belief that it doesn't matter what type of contractual arrangement is adopted. The aim now is for the JCT's working groupto assess the guidance that currently relates to sustainability in construction, at the same time winnowing out all the general advice that is of no specific relevance.

"I consider this to be a rich hunting ground - I think this is where most of the sustainability in contracts will end up," he continues.

"I think the incorporation of hard and fast contractual terms will be limited. The end result is likely to be a contract that says: 'I want you to consider these things, and here are the indicators, here are the benchmarks for achieving them, and here's the financial reward if you do'."

A rich hunting ground perhaps, however, Hibberd is also aware the finding objective measures for these benchmarks is also the most difficult part of the task the JCT has set itself.

Realistic goals

Hibberd's goals remain realistic. "At the end of the working group's research we hope to be able to tell people where to look to find lots of specific measures that will help them meet their goals. A lot of people want these at the moment but don't know where to find them. Sustainability in itself isn't a sea-change," he concludes. "What's new is that we are taking a particular issue that wouldn't traditionally have been grappled within the context of a contract."

The working group will make its recommendations in the summer, and JCT will announce its intentions in the autumn.

Who or what is a JCT?

The Joint Contracts Tribunal was founded in 1931 to introduce standard terms into a variety of contracts for the construction industry.

The prime movers at the time were local authorities who wanted to save the time and money spent on employing solicitors to work through different contracts every time a construction job was commissioned.

"The aim was to try to create a construction contract that could be picked off the shelf and used," says Hibberd.

That aim still holds true. "It may be amended a bit - we don't mind a bit - but if a contract is amended it should only be done if absolutely necessary."

The JCT is self-funded via the sales of its contracts. Membership, says Hibberd, comes from all sides of the industry, including the British Property Federation, Construction Confederation, Local Government Association, National Specialist Contractors Council, Royal Institute of British Architects, the Royal Institution of Chartered Surveyors and the Scottish Building Contract Committee.

"This is one of its strengths and its weaknesses - it can be difficult trying to satisfy all sides, but when they are satisfied the result has the benefit of legitimacy from the whole industry," Hibberd adds.

Sustainability and the JCT's Framework Agreement 2007: Sustainable development and environmental considerations

The Provider will assist the Employer and other project participants in exploring ways in which the environmental performance and sustainability of the tasks might be improved and environmental impact reduced. For instance, the selection of products and materials and/or the adoption of construction/engineering techniques and processes which result in or involve:

• Reductions in waste
• Reductions in energy consumption
• Reductions in mains water consumption
• Reductions in C02 emissions
• Reductions in materials from non-renewable resources
• Reductions in commercial vehicle movements
• Maintenance or optimisation of biodiversity
• Maintenance or optimisation of ecologically valuable habitat
• Improvements in whole life performance