With increasing concerns surrounding a climate crisis and the need for greater environmental sustainability, several councils across the UK recently expressed a firm commitment to become carbon neutral.
This article is taken from January's public matters newsletter. Click here to view more articles from this issue.
With increasing concerns surrounding a climate crisis and the need for greater environmental sustainability, several councils across the UK recently expressed a firm commitment to become carbon neutral. Even those that have not are under greater scrutiny than ever to think practically and strategically about how they can minimise the impact of their activities.
Many public bodies have set environmental targets which must be met, such as a requirement to reduce greenhouse gas emissions by a certain level within a designated time frame. These targets are particularly relevant when it comes to procuring construction works.
On each construction project, there are both short and longer-term issues regarding the environment. On a day-to-day basis, focus should be on issues such as minimising noise and air pollution, the efficiency of the equipment and machinery used, how frequently it is used and the nature of the materials used. In the longer-term, the amount of energy which the building uses and how long it will last are vital considerations which could have a major and lasting impact on the environment.
One strategy each public body should consider is improving the environmental impact of the contractors and other service providers it engages. This should be reflected in the way construction works are procured and the content of the construction contracts. Any requirements relating to environmental sustainability and achieving the public bodies’ targets should be:
This is so that all parties are fully aware of their obligations at the outset and required to adhere to them.
Public bodies can also, under certain circumstances, award contracts at the outset based on various environmental criteria under section 68(3)(a) of The Public Contracts Regulations 2015. Positive action in this area would help to send a message to suppliers that public bodies are taking climate change and associated issues very seriously.
But how can public bodies actually go about making their contracts more eco-friendly on a practical level? This depends on the type of contract which is used on the construction project.
On a more practical level, public bodies should ensure that their contracts specify how, and how often, any relevant environmental targets will be measured. There should be a clear mechanism under the contract by which suppliers will be required to report to the public body so that performance can be accurately and regularly assessed. It is good practice to provide for an independent third party to corroborate the data submitted by the supplier to the public body and, if necessary, allow for the public body to access this data so that it can interpret and check it itself, particularly in the event of a dispute.
With JCT contracts, KPIs and incentives that entitle the contractor to additional payments on the basis of their environmental performance and the performance of the works themselves could be incorporated in the contract via a Schedule of Amendments.
Most forms of JCT Contracts also include a ‘sustainable development and environmental considerations’ supplemental provision that the parties are able to select as being applicable to the contract. This encourages the contractor to suggest amendments to the works which will improve environmental performance.
Most forms of NEC contracts have built in KPIs, and selecting Option X20 allows for the incentivisation of KPIs, which could include BREEAM ratings, requirements to use renewable energy and energy-saving products and obligations on contractors to adhere to the public body’s relevant environmental policies.
As well as offering incentives as suggested above, provisions could be included in both forms of contract that seek to penalise contractors who fail to fulfil their obligations, ranging from deductions from the contract sum to termination in circumstances where breaches are persistent and serious.
If you have any queries on the issues raised in this article, please contact a member of the Construction Team.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023:
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Earlier in the year a number of fashion retailers, boldly announced the introduction of a charging fee for returning any product purchased via their online store. Yet, despite this commercial, and perhaps somewhat controversial decision, at least one major fashion giant that adopted this approach has recorded ‘historic highs’ in its September profits. Browne Jacobson partner, Cat Driscoll who heads up the firm’s commercial team in Manchester and is also head of its Fashion & Beauty sector discusses whether this change has put the average consumer off and whether the days of free returns are long gone.
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Welcome to our September edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
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In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
The Department for Levelling Up, Housing and Communities (DLUHC) has published a consultation on proposals to require Local Government Pension Scheme (LGPS) administering authorities (AAs) in England and Wales to assess, manage and report on climate change risks.
The concept of Legal Project Management (“LPM”) is increasingly relevant to the delivery of legal services, both in-house functions and private practice law. This is unsurprising, LPM is crucial if lawyers are to add value by controlling budgets, communicate pro-actively on risk mitigation and costs, and manage time by resourcing to deal with pinch points in the project.
The Department for Education (DfE) have announced that the conversion of Donisthorpe Primary School in Leicestershire on 1st September marked the 10,000th academy conversion.
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Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
On 31 August 2022, the Court of Appeal handed down the Judgment in respect of the appeal case of HXA v Surrey County Council and YXA v Wolverhampton City Council .
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