Some contractors have been found liable for building repair or remediation costs because they could not provide proof that they did what they said they did or had contracted to do. Therefore, during the construction process, it is critical that contractors and subcontractors keep comprehensive records of what happens on site.
This page discusses site records as they apply to weathertightness.
The benefits of maintaining good site records include:
- reducing the risk of future claims as a result of not being able to prove work was done and the standard it was done to and to show that the documentation provided was followed (or, if documentation or details were amended, that the amendment was properly authorised)
- providing an accurate and comprehensive record of all communications between parties to the contract, subcontractors, suppliers, designers, the owner and the BCA
- showing compliance with regulatory requirements such as the booking and carrying out of BCA inspections
- recording and measuring contract variations – not carrying out work as a result of a verbal instruction
- proving that work has been done to specification.
Fundamental work practices that should be adopted on all contracts are:
- maintaining a daily site diary
- organising correspondence files that are specific to the main contract, including the designer, the owner, the BCA, individual subcontractors and material suppliers
- keeping visual records such as photographs and videos.
A site diary must be maintained by anyone having responsibility for some aspect of the work and should be filled in daily as a record of the progress of the work. Although this can be time-consuming, it is invaluable when used as justifying evidence for:
- proof that work has been carried out as it should have been
- defence of future claims of any kind.
The method and type of diary used will vary. For larger sites, a pocket notebook or audio recorder can be useful, and the site diary can be written up at the end of each day. The diary should record:
- whether the materials were delivered to specification
- details of photos taken and where they have been stored
- information required from the designer or client to resolve an issue that has become evident on site
- inspections carried out – when and by whom
- critical discussions and verbal instructions
- written instructions received, whether by mail or email
- identification of possible future claim situations
- details of visitors to the site
- emails, texts and telephone calls (including mobile) made/received
- moisture content checks carried out for timber and concrete to ensure materials are dry enough before subsequent activities are carried out
- site meetings (with the BCA, the designer/client or subcontractors), whether informal or formal.
Individuals responsible for the site should be aware of all incoming and outgoing correspondence, which should be managed using a suitable filing system.
A smartphone, camera or video camera is very useful for recording:
- work that will not be visible in the finished building, such as flashings that are covered in
- deliveries to site, especially any damaged items
- damage caused on site, for example, to a finished element by another contractor
- unusual procedures or construction practices.
Cameras should have a date-setting facility that can be automated to imprint the time and date the image was taken.
As the contract progresses, changes may occur that will test the contractor’s ability to perform efficiently and may affect the conditions and terms of the original contract agreement. For example:
- details may be changed by the client or client’s agent
- an original detail may not be able to be achieved on site and may need to be redesigned
- material supplies may become unavailable
- labour conditions may change
- environmental factors (such as weather) may be different from expected.
Most contracts allow for written instructions to the contractor to clarify or amend the contract. Some of these changes may be adjustable against costs and time in the contract, while other changes may be solely at the contractor’s risk. On rare occasions, changes may significantly affect the original conditions of the tender and require renegotiation of aspects of the contract.
Any amendment is a change to the original agreement, so it is likely this will have a cost implication and necessitate some negotiation. Comprehensive site records are fundamental to this.
In practice, procedures for handling variations may vary, but they should always include:
- a clear, written instruction of the required amendment from a person having authority under the contract or the contractor’s written confirmation of oral instructions
- the contractor’s itemised claim stating the appropriate section of the specification or schedule of quantities under which the claim is being made
- a dated record of discussions or negotiations to agree the contract variation
- a record of agreements reached and any payments made
- a summary of the adjustment against the original contract sum.
It is also essential to retain copies of the make-up of tenders and subcontract agreements as references. Information on the compilation of prices provides proof of allowances or omissions in the tender price.
A working copy of the contract documents should be kept on site in one place. These show:
- the extent of the contract work for all contractors and subcontractors
- amendments made during tender stage including BCA consent requirements that need to be incorporated into construction
- variations authorised during construction.
These documents should be used to check the construction details and any relevant comments and changes can be recorded in hand-written notes.
On major contracts, monitoring systems are required to log revisions and to ensure that only up-to-date documents are used and distributed to those affected.
All superseded documents should be removed from the work area. They should be marked ‘superseded’ and retained as a permanent record for any future reference.
Contractors must build to the standards required in the contract and comply with the performance requirements of the Building Code. Proof of the quality levels attained should be kept in written form, at least until statute of limitation periods expire (see below).
Proof of quality control measures may include the recording or retention of:
- delivery dockets of materials, showing quantities and gradings, cross-referenced to where the materials are used on site
- delivery and receipt of additional or modified construction drawings or specification
- test data of raw materials and manufactured products
- check measurements of tolerances and standards of finish
- moisture content checks
- quality checks.
Particularly for work likely to be out of sight on completion, evidence of proper care in construction will provide essential evidence in defence of any subsequent claims against a contractor for remedial work or negligence.
The law imposes limits on the time that can pass between a problem with a building becoming evident and the time a legal claim is filed. Those time limits vary depending on the nature of the legal claim.
Under the Building Act 2004, claims relating to building work must be brought within 10 years of the act or omission on which the claim is based.
‘Leaky homes’ claims made under the Weathertight Homes Resolution Services Act 2006 must be brought within 10 years of the house being built (and only cover houses built before 1 January 2012). In 2014, a Supreme Court decision found that the 10-year period for the homeowners to take action began on the date the code compliance certificate was issued.
The Limitations Act 2010 sets time limits for filing monetary claims such as those arising from negligence or breach of contract. In general, claims for breach of contract have to be filed within 6 years of the breach taking place, and claims for negligence have to be filed within 6 years of the alleged negligence becoming reasonably discoverable and its cause being identified, but in some circumstances, the time limit may be up to 15 years.
A contractor’s central involvement in a project makes them the first to be named in any legal action or claim brought by an aggrieved party. As claims may arise some years after building work takes place (for example, once leaks become apparent) and because the nature of any claim may be difficult to predict, contractors should consider keeping records for an indefinite period – but not less than 10 years.
At the end of a building project, the contractor should provide the owner with the following documentation:
- Product warranties and guarantees obtained from materials and systems suppliers along with the maintenance requirements to validate the warranties. (This has been a legal requirement since 1 January 2015.)
- The Code compliance certificate, if it is a requirement in their contract to organise this with the BCA. (Under law, it is the owner’s ultimate responsibility to obtain the certificate.)
- The consented documents for their records. (The contractor should also retain a copy for their records.)
- A copy of any current insurance policy you hold for the building work. (This has been a legal requirement since 1 January 2015.)
- Information about maintenance necessary to meet Building Code requirements. (This has been a legal requirement since 1 January 2015.)
The contractor is typically responsible for supplying the BCA with:
- as-built drawings of services and so on
- any installation producer statements (usually before the Code compliance certificate is issued).
Updated: 6 August 2020