Legal: Responsibility for tree roots disrupting work progress

We are due to begin installing sheet piles to excavate for attenuation tanks. Our client (The principle contractor) has instructed us to instruct a tree surgeon to conduct a survey to assess the damage cutting through the roots will have on the tree, and the potential ramifications. Our client insist that this is our responsibility as it’s part of the physical condition of the site, and we should have been able to see the trees near the site boundary during the visual inspection of the site, and undertook surveys to assess the roots.

My argument is that during the feasibility studies the root protection area of nearby trees should have been assessed according to the specifications outlined in BS 5837-2012 and they should have included this in the site information passed on to us.

My question is, after signing the contract is it now our responsibility to conduct a survey to assess whether the tree is protected: what will happen if we cut through the roots; and any actions following that. Or should our Client have carried these surveys out during the feasibility stage, and therefore it is still their responsibility?

Your obligation is to do what is in the Works Information (under NEC3 clause 20.1) or Scope (NEC4, also under 20.4 ).

If the WI/Scope states that you have to sheet piles in this location and makes no mention of a survey, then that is only what you have to do. The exception is if what the WI/Scope states that you have to do is illegal, in which case you have should give a notification under clause 18.1 / 17.2 which, if the PM agrees, results in a change to the WI/Scope and is a compensation event.

So on the face of it, root protection and surveys are not in the WI/SCope so you don’t have to do it until instructed.

Firstly there is no oligation on a Client to provide Site Information, notwithstanding the obligations under CDM Regulations.

Secondly, the risk for such matters is set out in the contract. You don’t say what form this is but under NEC this issue could possibly be a ‘physical condition’ compensation event, provided the requirements of the clause are met, including; whether there is any reference in the Site Information, what could reasonably be assessed from a visual inspection of the Site and also applying the ‘experienced contractor’ test.

You don’t say whether the trees are actually within the Site boundary, which could influence the matter. What is clear, however, is that regardless of what you believe the Client should or shouldn’t have done, the conditions of contract determine your rights and obligations, including any Client amendments to the standard terms.

They have instructed us to instruct a tree surgeon to carry out assessments. What I’m really trying to work out is who’s paying for this.
Us, because we should have seen a tree outside, but in close proximity to the site boundary during visual inspections, and are responsible for the physical conditions of the site.
Or them, as under section 4.1 of BS 5837 - 2012, It says, “An accurately measured topographical survey should be undertaken showing all relevant features.”
4.2.4 “The survey should include:
c. The position of trees with an estimated stem diameter of 75mm or more that overhang the site or are located beyond the site boundaries with a distance of 12 times their estimated stem diameter.” It is in very close proximity, and no survey was ever taken by the Client. “A tree survey should be undertaken by an aboriculturist to record information about the trees on or adjacent to the site. The results of the tree survey…should be used to inform feasibility studies and design options. For this reason, the tree survey should be completed and made available to designers prior and/or independently of any specific proposals for development.”

Sorry, it is NEC3 and the tree is outside our site boundary but in close proximity to the boundary, and would have been noticeable during physical inspections.

My thought process is that a tree survey should have been conducted before we undertook our works according to BS 5837-2012 and they should have passed any information on to us, such as the root protection area of adjacent trees according to CDM regs, where information which the client possesses or is easily available should be included in our site information.

I think what you are saying is that the Client should have provided appropriate ‘pre-construction information’ in accordance with s4(4) of the CDM Regulations 2015. This is defined as 'information in the client’s possession or which is reasonably obtainable by … the client … '. I don’t know what ‘reasonably obtainable’ means or how proactive the client must be in order to properly discharge their obligations under CDM.

What I can say, however, is that if the Client has provided you with Site Information, then that is an important document in the process of determining whether a matter is a compensation event under clause 60.1 (12) as a ‘physical condition’. Although there are other criteria to be considered, if the Client has provided Site Information then you would not reasonably be expected to go beyond what they have already provided and should have made an allowance in your Prices for ‘physical conditions’ which were;

Obvious from the Site Information,
Could be deduced from a visual inspection of the Site,
Could reasonably be expected using the knowledge and understanding of an ‘experienced contractor’.

In the absence of the above, the next question is to look at the contract documents and see if BS5837:2012 is referenced anywhere and if so what document is it in. It is common for the scope to be written in such a way that it refers to a further document, often British or other standards.

I would suggest notifying a compensation event under clause 60.1 (12) and providing some explanation as to why you think it is a CE, addressing the points above. At least that way you can’t be ‘time barred’ even if your notification is not accepted.