Accessing the site

Access versus possession

There is an implied obligation that the principal must make the site available to the contractor to perform the work. When contracting, some consideration should be given to whether the contractor is provided with possession of the site, or only access to the site. This is important because possession gives the contractor an exclusive right whereas access gives the contractor a non-exclusive right.

Who has access to the site?

If the contractor is given possession of the site, the contractor should have an obligation to provide access to the principal, and others nominated by the principal (such as other contractors, consultants, the superintendent, the principal’s representative, tenants, financiers, etc). Consideration should be given to whether the right to access by these people is unfettered. If there are restraints on the right to access, these should be reasonable and limited to matters such as prior notice, occupational health and safety, and security.

The principal should ensure that others accessing the site (other than the contractor) do not interfere with the performance of the work or otherwise cause a delay to the project. Any such interference or delay may give rise to an extension of time or right to terminate.

Exclusivity, restricting access and interference

The principal’s obligation to provide access to the site will not normally include a warranty that access will be either exclusive or free from interference by third parties. The standard form contracts provide that the contractor only receives access to that part of the site needed to perform the work required at that time in the program.

It is also possible to limit access to the site. In these circumstances the contractor will not be able to claim a breach of contract, but the limitation on access may affect the ability of the contractor to complete the works under the contract (Baulderstone Hornibrook Pty Limited v Qantas Airways Limited [2003] FCA 174).

What if access is not provided?

If access to the site is not provided, the contract should have an extension of time clause to address both the lack of access and to avoid the application of the prevention principle. The prevention principle is a contractual principle which prevents the principal from relying on a liquidated damages clause if there is a delay due to default by the principal, its agents or employees (Rapid Building Group Limited v Ealing Family Housing Association Limited (1984) 29 BLR 5, and Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 114).

Despite the express provisions of a contract, the parties have a basic implied obligation to provide and to do all that is needed for the contract to be performed (Mackay v Dick [1881] 6 App Cas 251). The parties should do everything they can to ensure that the aims of the contract are achieved (Perini Corporation v Commonwealth [1969] 2 NSWR 530). Without an extension of time provision, if access is not provided to a site, then the contractor may have the ability to terminate the contract (Carr v J A Berriman Pty Limited (1953) 89 CLR 327).

In the Australian Standard contracts there is a default 14-day period for giving access to the site, which can be increased or decreased by the parties when negotiating the contract.