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27/11/19 – Climate Change Considerations in Design

The entire world is talking about climate change and it is unsurprising that many professionals in the construction industry (who are responsible for a large amount of the world’s CO2 emissions) have declared a climate change emergency.

Consultants in the construction industry are increasingly being expected to adapt their practices in response to climate change and from a legal perspective, the standard of care for professionals is changing with climate change and improvements in climate science. Increased media coverage and a general awareness of climate change are influencing the climate related risks that consultants should consider in the design of their projects. It is therefore unlikely that the uncertain nature of climate change would be a successful defence for future claims against consultants in the construction industry.

Climate change litigation in Australia has to date been focused on judicial review of planning decisions or as actions in corporations law alleging breach of director’s duties. Although there do not seem to be any cases in Australia as yet which have specifically addressed a consultant’s liability with regard to climate change, related case law does demonstrate that failing to adapt your design practices to address climate change will likely expose you, in the very near future, to claims being made against you. Planning decisions demonstrate that the courts will consider both precedented and unprecedented weather events (1).

Here at informed, we are also seeing more and more contractual provisions in consultancy agreements which elevate your standard of care in relation to environmental standards and climate change. Some of these obligations are relatively broad in their focus and relate to the entire project “as built” whilst others pertain more specifically to whether your services or design will achieve particular outcomes. Obligations which require you to achieve outcomes relating to the entire project are obviously more onerous and you will have less control over than requirements which simply relate to your services. We suggest that you pay particular attention to these types of obligations and be careful not to agree these obligations if they also require you to “ensure”, “warrant” or “indemnify” that such outcomes will be met.

Other ways, amongst many, to manage your risk include:
• understanding the scope of services requested and any specific standards required;
• making sure all the information you are relying on for your services is accurate and sufficient;
• warning clients of any risks associated with the brief; and
• keeping up to date with the latest climate change information relevant to your work and how this is    being applied to your profession.

On a more positive note, we think it is important for consultants in the construction industry to look at climate change as an opportunity to persuade clients to take it more seriously. Design professionals can and should be advocating for proactive and forward-looking practices.

If you are interested in learning more about these issues as well as identifying relevant climate change considerations and how you can create better project environments, the recording of our webinar ‘Climate Change Considerations in Design’ is now available here.

Kathryn Budd
Risk Manager – NSW

(1).  Taip v East Gippsland Shire Council [2010] VCAT 1222; Pridel Investments Pty Ltd v Coffs Harbour City Council [2017] NSWLEC 1042

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