Toxic avengers

Veterans of the registered social landlord development world are familiar with the research that must be done before homes can be built on brownfield sites: the desktop study and the ground investigation report (GIR). But often the information these tools reveal is not used efficiently, and this can cause problems at a later stage: litigation over whether the contractor followed instructions on remediation measures, and problems with funders who recognise that latent defects warranties are not intended to guarantee that the problems identified in a GIR have been resolved during construction.

RSLs developing brownfield sites for shared ownership disposals should also be aware that the Council of Mortgage Lenders now requires purchasers to ask a series of questions relating to the GIR before they get mortgage money from lenders.

So, once an RSL receives the results of its GIR, questions need to be asked, such as:

• who interprets the results?
  
• how will the building process be arranged to address them?
  
• who documents the remediation techniques and requirements?
  
• how are they worked into the tender process?
  
• who makes sure they are followed during construction?
  
• who confirms that problems identified in the GIR have been solved?

Clearly, some form of coordination is vital to the remediation process. The answer would appear to lie in the proper documenting of the roles and responsibilities of structural and environmental engineers and main contractors in particular, with the emphasis on communication.

In the typical development project team, structural and environmental engineers are best placed to commission and interpret the GIR. Often, in traditionally procured brownfield developments, that is where their role in the remediation process ends. However, they also seem best placed to ensure that their recommendations are followed by the main contractor during building and certified complete at the end. After all, if an architect's role in the building process is to supervise as well as to devise the design solution, why should that not also be the case for the party devising the remediation solution?

For design-and-build procurement, the situation is obviously different, but it is still advisable to request that a qualified structural and environmental engineer supervises the remediation measures, and certifies to this effect at the conclusion of the building works.

A bigger role for engineers
Some RSL development project teams already employ this continuing role for the structural and environmental engineer, and such engineers now assist RSL development officers and quantity surveyors in drafting the tender papers to ensure the recommended remediation measures are properly costed and incorporated. They also work with architects to supervise remediation and sign off certificates of satisfaction at the end of the building programme. These are moves towards the kind of joined-up process that is needed to complement the techniques, but this approach needs to be uniformly adopted across the RSL sector.

Once an RSL receives the results of its ground investigation report, questions need to be asked if legal problems are to be avoided later on

This enhanced supervisor and certification role for the structural engineer needs to be properly documented and covered by professional indemnity insurance. Therefore, the final link in the remediation chain is the lawyer. Specialist legal advice is required on the wording of the appointment of the structural and environmental engineer, and in relation to the attendant collateral warranties in favour of funders. Engineers will also need to work with their indemnity insurers to cost and cover the wider brief that brownfield developments require.

So the increased legal costs and the higher cost of the wider engineering brief must all be worked into the overall scheme cost. RSLs need to be prepared to meet these additional costs if they are to get the full benefit of their environmental detection tools during construction.

The earlier lawyers are involved the better. If GIRs are commissioned without any thought as to formal appointments, warranties or the addressing of reports to interested parties, it's often too late.

Care also needs to be taken when letting the remediation contracts. Many of the standard forms of contract, particularly those produced by the Joint Contracts Tribunal, do not go far enough in placing responsibility for ground conditions and design on the contractor. Contracts must be drafted by specialists to achieve this and to ensure that the appropriate warranties are given.

Paying the cleaning bills
The RSL sector is as far ahead as any in its understanding of the techniques available to address contamination of brownfield development sites. But more effort needs to be made to follow the process through to a documented conclusion. That costs money.

RSLs who have identified, and perhaps also explored, the joining-up of the remediation process have discovered that there are no additional allowances for the resultant increase in development costs. There are a number of new insurance products being developed which could supplement or even replace some of the steps in the process, but they too are expensive.