NEC PSC: Responsibility of planning discharges

We are working on an NEC Option A contract with novated design consultants who are novated through a professional services agreement. The Employers Agent and the novated consultants are from the same company but different from departments.

In our tender clarifications with the Employers Agent we agreed to undertake the discharging of the planning conditions assuming this was covered under the novated consultants as they had applied for the planning applications.

There is no specific mention of planning discharges within the novation agreement however our consultants are claiming because we accepted these within our contract with the Employers Agent and these are the same company it applies to them and is therefore our responsibility.

If there are separate contracts in place i.e the main form and the novation agreement can clarifications be cross referenced between the two because the Employers Agent and the Architect are from the same company?

And if there is an ambiguity in the matrix of responsibility included in the novation agreement but the WI is clear do we hold the risk?

You need to keep contractual lines of responsibility clear and distinct from each other.

Firstly, what are your obligations to the Employer in respect of planning conditions? If you have any they should be stated in the Works Information in your ECC with the Employer. If there are non then neither you or your designer have an obligation fulfil them and you would need a PMI (clause 14.3) and CEN (clause 61.1) from the PM to carry out any work in relation to them.

You say the novation agreement doesn’t mention planning discharges so on what basis is your designer saying you have accepted them in your contract? My question is how did the statement you made in tender clarifications find it’s way into your contract? Clause 12.4 is an entire agreement clause so statements made during the tender are not automatically included in the contract and are not binding on you. If it was agreed that you would discharge planning conditions then this should have been included in the Works Information prior to the Contract Date.

One of your main obligations in the ECC is to Provide the Works in accordance with the Works Information (clause 20.1) so unless someone can point to a part of the Works Information that states you are required to discharge any planning conditions, then you are not obligated to do so.

It isn’t clear if the PSC that the Consultant had with the Employer included in the Scope an obligation for them to discharge planning conditions? Even if it did, that PSC is now effectively a subcontract in your ECC and so the answer is still the same, if the obligation is not in your Works Information you are not obliged to do it.

Novation is not a concept used in NEC contracts as the process does not follow the principles of good management practice and often leads to problems as is demonstrated by your current predicament.