Employers’ Obligations - Scottish Construction Contracts - page 90

will not be prejudiced), allows the Employer to use or occupy the site or the Works
or part of them prior to completion, whether for storage or otherwise. Such consent,
wheregiven,appearstoprovidetheEmployerwiththeequivalentofalicencefromthe
Contractor to use or occupy part of the site to the extent necessary for the particular
purposefallingwithinthescopeoftheclause,see Impresa Castelli SpA v. ColaHoldings
Ltd (2002).
Further examples can be found in clauses 3.1 and 3.4 of the SBC, which provide for
thepresenceonsiteoftheArchitectandclerkofworksandinclause3.1oftheSBC/DB
in relation to the Employer's Agent. Likewise, clause 27.2 of the NEC3 requires the
ContractortoprovideaccesstotheProjectManagerandtheSupervisor.
Regardless of such express provisions, it is submitted that the contractor's right of
possession should be subject to the implied qualification that the employer, or those
employed by him, should have a right of reasonable access for the purposes of inspec-
tion, supervision and administration of the contract. Where nothing is said about
possession, the contractor must be allowed use and possession of the site as required
forthepurposesofcarryingouttheirworks,see Ductform Ventilation (Fife) Ltd v.
Andrews Weatherfoil Ltd (1995).
he NEC3 provides separate definitions for Working Areas and the Site. he Work-
ing Areas include the Site, and the areas which are both necessary for providing the
worksandareusedonlyforworkinthecontract(unlessthatischangedinaccordance
with the contract). An example of where this might be useful is a city centre develop-
ment, where the provision of the works may require the use of land outwith the Site
itself. The NEC3 provides that materials may be brought to the Working Areas pro-
vided that any tests or inspection have been passed (clause 41.1), and makes provision
for transfer of title on delivery (clause 70.2). The NEC3 clause 15.1 allows the Con-
tractor to submit a proposal to the Project Manager for adding an area to the working
areas stated in the Contract Data, and a reason for refusing such a proposal is that the
proposed area is either not necessary for providing the works or used for work not in
the contract.
After starting on site, the contractor may be denied undisturbed occupation for
a variety of reasons, only some of which may be the responsibility of the employer.
Clause 2.7 of the SBC and 2.6 of the SBC/DB provide that where another contrac-
tor or supplier (defined as Employer's Persons) is employed by the Employer to carry
out works outwith the Contractor's scope of works, the Contractor is under an obliga-
tion to permit the execution of such other work where the contract provides sufficient
informationtoallowtheContractortodosoandstillcarryouttheworksinaccor-
dance with the contract. Where such information has not been made available to the
Contractor, the Employer's right to have access to, and to instruct other contractors
to execute works on the site, is subject to the consent of the Contractor, not to be
unreasonably withheld or delayed.
In the case of the NEC3, any right on the part of other contractors engaged by
the employer (i.e. 'Others') to share the Contractor's working areas should be spec-
ified in the Works Information, see clause 25.1. Any departure from this may be a
compensation event under clause 60.1(5).
Unlessthecontractprovidesotherwise,anemployerwillnotbeliablewherethereis
unauthorized occupation by a third party such as picketers, unless they have induced