Climate clause

JCT Energy Efficiency and Environmental Obligations

Mary's Clause

This clause amends the JCT’s standard Design and Build documents to make energy efficiency part of practical completion.

This is a climate clause

This clause brings climate considerations to your drafting. It is not yet net zero aligned. To align this clause with net zero, use our toolkit or join one of our events.

Skip to clause

Why use this?

This clause obliges the Contractor to achieve a specific standardised energy efficiency rating on practical completion of new build and renovation projects. This obligation will improve the energy efficiency, value and marketability of built assets and drive decarbonisation in the construction sector.

Disclaimer - please read

The clauses on this website have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

The clauses on this website do not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and do not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

The clause

[Drafting note: Capitalised terms relate to either a defined term in this clause or a defined term in the main JCT Design and Build Contract that this clause is designed to be inserted into.]

JCT Contract Particulars and Conditions: Incorporation into this Agreement

1.1 The Parties have completed the JCT Contract Particulars in the JCT Design and Build Contract, 2016 edition attached at Annex A. The JCT Contract Particulars and Conditions shall take effect in this Agreement, as completed by the Parties, subject to the following amendments:

Definitions

1.2 Add these definitions to clause 1.1:

Environmental Objectives

(a) the protection of the environment (including the prevention of atmospheric and other pollution and the protection of wildlife and wildlife habitats); 

(b) sustainable construction and development; and 

(c) energy efficiency,

in particular by using all reasonable endeavours to fulfil the environmental and sustainability objectives listed in Schedule 8.

EPC Obligation: the requirement for the Contractor to achieve an EPC [‘A’] rating in respect of [certain parts of] the Works [as identified therein].

Compliance with Environmental Objectives

2.1 Add a new clause after clause 2.2:

Anti-slavery, anti-bribery and environmental requirements

2.3 In performing its obligations under this Agreement, the Contractor shall and shall ensure that each of its subcontractors shall:

.1 comply with the Modern Slavery Act 2015 and the Anti-Slavery Policy;

.2 comply with the Anti-Bribery Policy; and

.3 at all times in carrying out its obligations under this Agreement, seek to [promote] the Environmental Objectives.’

2.2 Add a new sub-clause at the end of clause 2.2:

‘.6 Without derogating from any other provision in this Agreement, the Contractor warrants to the Employer that it shall use the Standard of Care when:

.1 designing the Works;

.2 selecting goods, materials, plant and equipment for incorporation in the Works; and

.3 complying with the obligation in clause 2.3.3 in respect of the Environmental Objectives.’

EPC Obligation

3.1 Add new clauses after clause 2.27:

‘2.28 For the purpose of assessing whether practical completion of the Section or the Works has been achieved, the [Employer/ Employer’s Agent/ Architect/ Contract Administrator] shall not issue a Practical Completion Statement until such time as: 

.1 the EPC Obligation for such Section or the Works, as the case may be, has been met; or 

.2 the Employer and Contractor have entered into a specific binding agreement to urgently achieve the EPC Obligation within the Rectification Period. 

2.29 If clause 2.28.2 applies, then the agreement between the Employer and the Contractor may include the Employer requiring the Contractor to undertake remedial works (such remedial works to include retrofitting as necessary) to: 

.1 achieve the EPC Obligation; or

.2 if clause 2.29.1 is not possible, improve the energy performance of the Works, 

provided that the total aggregate cost (excluding VAT) of such remedial works (which shall be borne by the Contractor) does not exceed [10]% of the Contract Sum.’

3.2 Add to the end of clauses 2.32 and 2.36, before the full stop:

‘, provided that the [Employer/ Employer’s Agent/ Architect/ Contract Administrator] shall not be required to issue any Certificate of Making Good earlier than the expiry of the Rectification Period and/or prior to the EPC Obligation for such Section or the Works, as the case may be, having been met.’

3.3 Add a new clause after clause 2.36:

‘2.37 Snagging list and defects, shrinkages or other faults remaining at practical completion clauses 2.35 and 2.36 shall apply to:

.1 any items identified on any snagging list issued by the [Architect/ Contract Administrator] at or around practical completion or attached to a Practical Completion Certificate or Section Completion Certificate;

.2 any defects, shrinkages or other faults in the Works at practical completion; and

.3 any incomplete part of the Works remaining at practical completion including any work required for the purpose of achieving the EPC Obligation.’

3.4 Add a new Schedule after Schedule 7:

Schedule 8 – Environmental and sustainability objectives

Objectives:

1. to use sustainable materials and avoid the use of environmentally harmful materials [Drafting note: See [Tristan’s Clause] Construction Materials: Procurement for suggested drafting];

2. to reuse and recycle materials on site;

3. to employ a site waste management plan which includes zero-to-landfill and a process to minimise waste as far as possible [Drafting note: See [Francis’ Clause] Climate Aligned Construction Waste Management for suggested drafting];

4. to adopt environmentally friendly working methods, including minimising energy use through plant and site services [Drafting note: See [Ashkan’s Clause] Sustainable On Site Working Practices for suggested drafting];

5. to protect and enhance existing ecological features on site;

6. to minimise air (dust and fumes) and noise pollution;

7. to minimise water use and guard against water pollution;

8. to utilise local suppliers; and

9. to promote green travel to and from the site.

Join hundreds of lawyers fighting climate change

Help us and take part