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Contracts often include requirements that the works (or their components) achieve a certain design life. Quite what that means can be a vexed question and lead to disputes if one party alleges premature failure. Readers may recall the Supreme Court decision in E.On vs MT H酶jgaard [2017] UKSC 59, where H酶jgaard was held to be in breach of the obligation to design the wind turbine foundations to ensure a design life of 20 years, despite this obligation being 鈥渢ucked away鈥� in the technical requirements.

The issue has recently been considered again in Blackpool Borough Council vs Volkerfitzpatrick Ltd [2020] EWHC 1523. The parties had entered into a contract for the construction of a new tram depot, intended to be a landmark building on the Blackpool seafront. The contract was a modified NEC3 standard form. The works information provided the design life should be 20 years save where specified to the contrary in the functional procurement specification (FPS) (which was also included in the works information). The FPS itself required that the 鈥渂uilding structure鈥� should achieve a 50-year design life.

Construction was completed in 2011. In January 2015 a section of the roof detached during high winds. Upon inspection, the council discovered that steel components in the roof space had lost galvanized coating and were significantly more corroded than would have been expected after four years of service life.

Following adjudication proceedings, the council brought a claim in the Technology and Construction Court alleging that significant parts of the depot did not meet their intended design life of 50 years as provided for in the FPS and were unsuitable for the coastal environment. Volkerfitzpatrick鈥檚 defence was that the contractual design life requirements were 鈥渞easonable care鈥� only, that the required design life of the relevant individual elements was required to be either 25 or 20 years (not 50), depending on the component in question, and that the council had failed to maintain the depot correctly.

The court held that it did not mean the structure should be intended to be maintenance-free for the whole of its design life, but that it 鈥榦ught not to need major repairs over that period鈥�

Although the contract contained a 鈥渞easonable care鈥� clause, it also stated that the works were to be provided in accordance with the works information, which included the design life requirements. In addition, a specific clause had been included whereby the contractor 鈥渨arranted and undertook鈥� that the works would 鈥渟atisfy any performance specification or other requirement included or referred to in the contract鈥�. As a result, and relying on H酶jgaard, the court was satisfied that the clauses in the contract should have the same strict character as the Supreme Court had held the clauses in H酶jgaard to have.

Having decided the design life obligations were 鈥渟trict鈥� obligations, the court then had to decide a number of other issues relating to design life.

The first was what 鈥渄esign life鈥� actually means. This particular contract contained no definition of the phrase. The court held that it did not mean the structure should be intended to be maintenance-free for the whole of its design life, but that it 鈥渙ught not to need major repairs over that period鈥�. It held that a distinction should be drawn between anticipated maintenance and major repair, and that given that the contract limited acceptable maintenance to maintenance that was not 鈥渘on-standard鈥� or 鈥渦nusually onerous鈥� in regard to requirements for works of a 鈥渟imilar character鈥�, the anticipated maintenance was limited to standard maintenance that could be expected for buildings of this type.

The court also had to decide on the applicable design life. The works information provided that the design for all elements of the work must 鈥渦nless otherwise specified in the FPS, have a design life of at least 20 years鈥�. It was common ground that the FPS specified a design life of 50 years for the 鈥渂uilding structure鈥�.

This case serves as a useful reminder that contracts containing 鈥渟trict鈥� obligations as to quality will be enforced according to their terms

The council argued that 鈥渂uilding structure鈥� included all components of its claim, whereas Volkerfitzpatrick argued that it was limited to the primary structural frame. A 鈥渢echnical design log tender development document鈥� had been produced and attached to the works information and the court found that this provided the clearest guidance as to what was and what was not included in the building structure. As a result it held that the components about which the council was complaining did not fall within the 鈥渂uilding structure鈥� and therefore had a required design life of 20 or 25 years rather than the 50 years claimed for by the council.

 Volkerfitzpatrick had also alleged that the council should have maintained areas affected by corrosion with such frequency as to ensure they were kept clean, even if that would require more frequent cleaning than in a non-coastal setting. Given that the design obligation limited acceptable maintenance to that which was not 鈥渘on-standard鈥� or 鈥渦nusually onerous鈥� having regard to 鈥渘ormal construction operations鈥� and maintenance requirements applicable for works of a 鈥渟imilar character鈥�, the court found that the comparator was intended to be structures of the same type as the depot (rather than being specific to the particular structure in the particular location). Any maintenance requirements resulting from the particular location would be 鈥渘on-standard鈥� or 鈥渦nduly onerous鈥�.

This case serves as a useful reminder that contracts containing 鈥渟trict鈥� obligations as to quality will be enforced according to their terms, even if those quality obligations are 鈥渢ucked away鈥� in reams of technical requirements. The relevant clauses in this case are commonplace, so parties to all construction contracts should be alive to the consequences of including them. The case also provides some useful pointers as to how the term 鈥渄esign life鈥� might be interpreted, and how far maintenance obligations will be taken into account in determining its duration.

Victoria Peckett is partner in, and co-head of the construction and engineering team at, CMS UK