Chapter 6 What is the site?
Defining the site
The purpose of defining the site is to ensure everyone knows exactly where the work is to be performed and what they can expect to find in regard to the site conditions (see also Chapter 6 – latent conditions).
If any changes to the definition of the site are anticipated because the work is to be performed in stages, then the different areas of the site for each stage should also be defined. The definition of the site is also important so that the area in which the principal contractor has responsibility pursuant to relevant Work Health and Safety (WH&S) legislation is clear.
Projects often have difficult or unusual sites and this means each new project needs to consider and define the site differently. A one size definition does not fit all projects.
The site is generally defined by reference to the surface of the land, and often this means that the area below the surface of the land is either excluded or ignored. In some cases specific attention may need to be given to the subsurface and airspace at a particular location when considering how the site is defined.
In the Australian Standard contracts AS2124-1992, AS4000-1997, AS4300-1995 and AS4902-2000 the site is defined by reference to land made available to the contractor. There are separate latent conditions provisions in these contracts designed to deal with issues like subsurface conditions that are not known to the parties when they sign their contract. The different approaches to defining the site in standard form contracts means the parties need to separately consider subsurface features when drafting a contract and defining the site.
Setting out the work
Knowing exactly where work will be performed and having certainty about boundaries is critical. For this reason it is useful to have a survey to define the site so everyone can be certain that the building work only occurs on land actually owned by the principal. The contract should say who is responsible for surveying and pegging out the site and the works. Usually the principal will provide the information and survey marks needed by the contractor to set out the works, but this can also be defined as a contractor responsibility.
Implied terms about the site
There is no implied warranty as to suitability of a site for the work, or that the works are able to be carried out in accordance with the specifications prepared by the principal. Unless the contract provides otherwise, or there has been some other representation, a contractor is generally required to inform itself of all the details associated with the work, including the feasibility of carrying out work on the site in question. Courts will not imply terms that contradict what the contract expressly states and will be particularly reluctant to find an implied term about investigating the site.
Temporary and laydown areas
The site will usually contain areas adjacent to the physical construction site (where the work is performed) for use as storage areas, sheds, laydown of materials and site access. Secure fencing and access control are generally features of these temporary or laydown areas. The construction contract will govern dealings with these areas and processes associated with access, laydown of materials and security. The contract may specify that temporary or laydown areas will form part of the site or specify an alternative arrangement entirely. For example that it is the contractor’s risk to obtain any additional areas necessary to facilitate the works.