LEGAL EAGLES
ONSHORE WIND LESSONS TO BE LEARNED
We are now on the second generation of onshore wind farms. Much has been learned technically and operationally, but what lessons have been learned on the contract side?
CIVILS CONTRACT
The civils contract has been the origin of most of the disputes and there have been many. This is usually design and build with an originating technical specification from the client.
THREE MAJOR SOURCES OF DISPUTES HAVE EMERGED GENERALLY… • Design issues • Risk on earthworks • Risk during extended maintenance periods
DESIGN ISSUES
The main design issue has been around the adequacy of the turbine base design. PI insurers have been meeting claims against designers for failure to design to meet the dynamic loadings imposed by the turbines. These disputes are now tailing off as the design has developed.
This has affected the design liability provisions in the civils contract. Caps on or exclusions of liability for consequential loss are demanded as a matter of course by contractors.
Where the turbine suppliers’ requirements are incorporated within the civils contract, which is inevitably the case, there is real scope for conflict between them and the technical specification. A clear order of precedence of documents within the contract is needed.
EARTHWORKS
Slopes and gradients, and use of on-site material are critical to the contractor’s price. The planning permission will normally dictate much of what can be done earthworks-wise with often a ‘tolerance’ area, within which the turbine bases and the location of the access roads may be sited. These may not be achievable. The question often raised is: when does the ‘difficult to achieve’ in the way of gradients and slopes become impossible? Impossibility of performance may be a ‘get out’ for the contractor- simply being more expensive to achieve than anticipated, is not.
RISK DURING EXTENDED MAINTENANCE PERIODS The defects liability period under the civils contract is often set at two years. As well as an obligation to rectify defects, employers usually impose ongoing maintenance obligations on the contractor during that period. The issue that often arises is where a repairing obligation ends and a maintenance obligation begins. The turbine supplier may well have obtained early possession of site roads and groups of turbine bases before overall completion. This can cause significant damage to the roads.
Where responsibility for maintaining these roads rests with the contractor until the end of the defects period, an issue that often arises is whether a contractor’s maintenance obligation extends to repairs required as a result of the turbine delivery, rather than simple wear and tear. Where the roads ought to have been designed to withstand turbine delivery, if they fail to do so, this
www.windenergynetwork.co.uk 91
ED’S NOTE This is an abridged version - we recommend you read the full text via the link at the end of article.
may constitute a defect under the contract.
These are just some examples of the common issues of contention in these contracts.
Lindy Patterson QC Dundas & Wilson www.dundas-
wilson.com
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