Renewable Energy - Legal Lessons in Construction & Engineering
Renewable energy technologies can involve a number of natural resources including wind, solar, wave, biomass and anaerobic digestion.
With the Renewables Obligation in mind, there is certainly the desire to embrace these technologies. In view of emerging new processes and the constant updating with next generation it can be difficult to maintain contractual certainty every time. Inadvertently not addressing one of the following factors at an early stage can and does cause problems at a later date, leading to expensive and time-consuming disputes.
No matter what other client drivers have been identified or the nature of the project, we help clients to consider carefully and reflect in clear, concise and enforceable contractual terms the following three fundamental issues to de-risk a project as much as possible:
Time - how long do we have and what lead-in periods and key milestones (such as obtaining planning consents and other licences) do we need to programme in, to implement the technologies due to prevailing political and environmental factors?
Cost - what is our budget, who else is paying for this, what security do they want for their investment and what are the financial and consequences of any change in the design or construction parameters?
Quality - what are the expectations in terms of yields now and in the future, are there ongoing maintenance or other performance criteria to achieve, do we have the right team around us and do they know what is expected of them?
The 5-strong Construction & Engineering team understands that identifying client drivers and seeking to achieve any of two of the three fundamental elements above, and minimising the risks associated with the third, is the key to a successful project. We tailor our approach and advice accordingly from the very outset for all projects, whether they involve: the use of and integrated design of technologies to save energy in new builds; stand-alone energy creation schemes (be it PV, hydrogen, biomass or marine); or considerations surrounding the retrofit and performance of existing assets and facilities. Our industry as well as legal expertise allows us to approach such instructions from a very practical viewpoint as engineers and project managers, as well as lawyers with broad procurement experience.
Also, we work and partner with a number of other consultants and contractors from our extensive network to help bring renewables projects together. Clients inform us that this provides real added value to them and the growth of their businesses, which we identify as key to overcoming barriers (whether planning, people, financial or technical) to the commencement and successful completion of works.
We assist at all stages but we can demonstrate our value best by being involved from inception where, as part of the wider team, we can advise clients on identified risks which can then be either eliminated, reduced or accepted and managed by internal processes.
At inception, we can help:
Form procurement strategies and undertake contract reviews
Draft and review professional appointments
Advise upon funding agreements including the review of warranties
Carry out contract audits for due diligence purposes
Advise upon contaminated land liabilities
During the construction phase we are able to advise on:
Programmes, monetary claims, project administration and management
Performance of the professional team
Determination/repudiation of contracts
Assessment of claims for insurance purposes
At completion we are able to advise on:
Defects reviews
Presentation of claims in mediation, adjudication, arbitration or litigation
Post-completion analyses, e.g. for audit purposes.
Due diligence
Insolvency
End-User maintenance agreements/long term service agreements
Asset & facilities management agreements
Our experience is varied and includes:
Reviews of ICE 7th edition re-measurement, ICE Minor Works 3rd edition and now Infrastructure Conditions of Contract (ICC) for a national subcontractor concerning on-shore wind farm piling works for various Ecotricity sites around the UK;
Development for solar installation at one of Europe’s largest warehouses for a leading aluminium supplier based near Bristol;
Advising on Operation & Maintenance contracts for a windfarm scheme in Scotland;
Representing a UK energy operator on defects allegations concerning the yield achieved from its biomass plants in South Wales;
Advising on contractual arrangements for the supply and installation of retrofit street lighting; and
Representation and negotiation for a landowner in respect of the defective installation of ground source heating.
Defence of landowners in respect of contamination issues.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.