NEC3 ECC - Access Following Take Over

Who has control (principally for access) of an area of the Site that has been taken over by the Employer? Does the Employer in using part of the works after the PM has certified its been taken over, mean that it is the Employer who has principal control over who can access the area e.g. third party access if the Employer permitted it? Cl.43.4 notes how the PM arranges access of the taken over part of the works to allow the Contractor to correct a defect. Is access other than to correct a defect entirely at the gift of the Employer?

1 Like

The Employer has the right to use part of the works before Completion is certified in which case that part of the works is taken over unless the reason for it is either stated in the Works Information or is to suit the Contractor’s method of working (clause 35.2). However you say that the Employer has taken over “an area of the Site” not “part of the works” - this suggests that the Employer may not have taken over at all but what they are doing is restricting access.

Control of the Site is not a concept used in the contract and it is important to separate contractual rights and obligations from those under CDM Regulations. Unlike in other contracts, in NEC the Contractor does not have “possession” of the Site, they merely have a right of access and if access is denied by the Employer when it should not have been then the Contractor’s remedy is a compensation event for the cost and time incurred - see clause 60.1(2).

If the Employer has taken over part of the works then the only reason you would need to access to that part of the works again would be to correct a Defect. In this case yes access is at the discretion of the Employer and once it is given you have the defect correction period within which to correct the Defect.

1 Like