Construction projects may, from time to time, encounter unexpected archaeological discoveries on site. The failure to consider the likelihood of archaeological remains adequately in the early stages of a development can prove costly, resulting in expensive delays and additional costs, as Catrin Rees, Collyer Bristow, explains.
Ultimately, the parties to a construction project are free to determine how they allocate the risk of unexpected archaeological discoveries and each case will depend on the precise terms agreed. As a rule of thumb the developer will usually be expected to take the risk.
Given that a vast number of UK building projects are procured using a contract based on one of the JCT suite, what is the position of parties using the JCT Standard Building Contract?
The JCT Standard Building Contract provides to the contractor an entitlement to both time and money where delay is caused to the works due to the discovery of fossils or antiquities on site.
Under the JCT all discoveries of “antiquities”, including fossils and other objects of interest or value (such as archaeological discoveries), on site automatically become the employer’s property. Once found, the contractor must comply with a standard set of criteria and should:
- use his best endeavours not to disturb the object and cease work if and insofar as its continuance would endanger the object of prevent or impede its excavation or removal;
- take all steps necessary to preserve the object in the exact position and condition in which was found; and
- inform the Architect/Contract Administrator or the clerk of works of its discovery and precise location.
(Clause 3.22, JCT Standard Building Contract Without Quantities 2016)
The architect/contract administrator is required to issue instructions regarding any further action to be taken – which could require the contractor to allow the removal/further investigation of the discovery and result in further delays.
However, where resulting in critical delay to the works, an architect’s instruction given under this clause will entitle the contractor to an extension of time, protecting it against a claim for liquidated damages and possibly loss and expense.
Although, you may have (literally) struck gold on the development, the discovery of an ancient Celtic burial spot may well prove costly in terms of project delays, redesign costs or even meaning works are brought to a halt. Care should be taken at the planning stage to consider the possibility of the presence of antiquities on site.
If the contractor has sufficient information to make allowance for price and programme to take into account any known archaeological remains, it may accept the risk but otherwise it will expect the developer to take the risk, as reflected in the popular JCT standard form.
Catrin Rees is a Senior Associate in the law firm Collyer Bristow. She can be reached by email: catrin.rees@collyerbristow.com. Visit www.collyerbristow.com
