What does climate change mean for construction professionals?

Introduction

Governments and corporations are becoming ever more conscious of their risks and responsibilities regarding environmental, social and corporate governance ('ESG') issues. Our ESG Feature considers how businesses across multiple sectors can manage those risks and responsibilities.

For those operating or investing in the construction sector, anticipating and planning for the physical effects of climate change is a key focus. We highlighted some issues for the construction industry in our What to Look Out for in 2020 piece. The Climate Change Act 2008 (as amended in 2019) imposes a legally binding target of net zero carbon by 2050. Stricter regulations on energy efficiency for buildings are planned. The announcement of the Getting Building Fund by the UK Government in August 2020 included references to a "green economic recovery", to "building environmentally-friendly homes" and a focus on "sustainable construction". The Environment Agency's 5-year Plan, announced in July 2020, is heavily focused on climate resilience; ie on preparing for flooding, coastal change and drought, and improving the health of our air, land and water.

Construction professionals are increasingly coming under pressure to understand and consider climate-related risks when working on a building project.

Exposure to climate change liability

Is there now an increased risk of liability for construction professionals specifying or designing aspects of construction projects, if they fail to anticipate climate change risks? The answer must be yes. The clear direction of travel is towards stricter regulation of environmental building standards, and the risk of flooding or other extreme weather events will only increase. The Royal Institute of British Architects (RIBA) has released reports such as The Value of Flood Resilient Architecture and Design, highlighting the need to build properties that are resilient to climate change impacts such as flood damage.

RIBA requires its architect members to "strive to protect and enhance ... the natural environment" (RIBA Principle 2). Similarly, ICE requires its civil engineer members to "show due regard for the environment and for the sustainable management of natural resources" and to "have full regard for the public interest, particularly in relation to matters of health and safety, and in relation to the well-being of future generations" (ICE Code of Professional Conduct).

Alongside these professional obligations come statutory, contractual and tortious duties, all of which need to be read in the context of a renewed and increasingly strong focus on environmental issues. Clearly, the scope of a construction professional's duties is largely determined by the express terms of the relevant contract, but there may be implied terms, and the professional will often owe a concurrent duty of care in tort. Although questions of causation and remoteness of damage will always need careful consideration, it may become increasingly possible to connect failures at the design stage of a building project to subsequent climate-induced damage.

As an example of statutory duties, the Defective Premises Act 1972 (the DPA) requires that dwellings are fit for human habitation when completed. It is possible that failure to anticipate the effect of rising temperatures or increased heavy rainfall on living conditions in residential builds could trigger claims. Section 1 of the DPA imposes a duty on those "taking on work for or in connection with the provision of a dwelling" to ensure that the work carried out is done in a workmanlike, or professional manner, so that the dwelling is fit for habitation when completed. As was made clear by the Court of Appeal in Lessees and Management Company of Herons Court v NHBC Building Control Services (see our article on that decision here), s1 DPA applies to those who positively contribute towards the creation of a dwelling, that is contractors, architects and engineers.

Construction professionals should ensure that their designs seek to avoid or mitigate foreseeable risks. It is certainly arguable that the physical effects of climate change are now foreseeable. All construction professionals involved in a building project should be thinking about the potential impact of, for example in the UK, periods of heavy rainfall alternating with droughts. This may mean incorporating into designs whatever might reasonably be needed to protect or strengthen a structure where there is an increased risk of damage from the effects of a changing climate and extreme weather.

Any discussions with the client about such issues should be carefully documented. An architect who cannot produce evidence that he anticipated, say, the flood risk from nearby watercourses during periods of prolonged rainfall, may struggle in the event of a future dispute to show that he complied with his contractual and tortious duties to exercise reasonable skill and care.

Construction professionals need to ensure that they stay up to date with all available information and regulation, as well as with climate change technology and new products, to ensure that they are anticipating risks and designing in climate change resilience.

What this means for construction professionals

• Failure to stay up to date, and to adapt, in the face of an increased focus on environmental resilience may lead to increased liability for construction professionals where foreseeable risks later cause loss.

• As awareness of climate change and its effects increases, the expectation that designers and engineers anticipate these changes will become standard. 

• Construction professionals and developers alike should ensure that environmental considerations are given due attention by all on a construction team, and that any decisions, and their reasons, are carefully recorded.