Navigating Construction Delays: Lessons from Australian Cases & SCL Protocol

In the intricate world of construction, delays can significantly impact project timelines and costs. Understanding the legal implications of these delays is crucial for professionals in the industry. This article delves into three Australian cases and their relevance to the delay analysis methods outlined in the Society of Construction Law (SCL) Delay and Disruption Protocol 2nd edition (SCL Delay and Disruption Protocol)

CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217

This case involved a dispute over the demolition of a wharf, with delays due to difficulties in demolishing the dolphins. The court upheld John Holland’s argument that CMA’s Extension of Time (EOT) claim should be denied based on the strict interpretation of the time bars contained within the subcontract. This case underscores the importance of strict adherence to contractual time bars and the potential consequences of failing to do so.

Furthermore, the language of the relevant clause in the contract stated that CMA may claim for an extension of time if it "is or will be delayed". The Court interpreted this language as requiring a prospective delay analysis.

White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166

In this case, a dispute arose over a sewer design that allegedly caused a delay in the completion of a project. The Supreme Court of New South Wales rejected both parties' expert delay analysis and the methodologies on which they were based. The judge preferred to apply a ‘common law common sense approach' in reviewing the evidence to determine whether the delay in providing the sewer design caused a delay to the entire project.

This case highlights the need for direct evidence of the actual cause and impact of the claimed delay. This suggests a form of retrospective delay analysis, as it involved looking back from the effect (the delay to the entire project) to find the cause (the delay in providing the sewer design).

Built Qld Pty Ltd v Pro-Invest Hospitality Opportunity (ST) Pty Ltd [2021] QSC 224

This case involved a number of claims by Built for variations, extensions of time, and delay damages, and by Pro-Invest for defective works and liquidated damages. The court confirmed that extension of time (EOT) clauses based on the Australian Standards permit an assessment of delay on a prospective or retrospective basis. This case highlights the flexibility of EOT clauses and the importance of understanding the method of delay analysis in managing construction delays.

SCL Delay and Disruption Protocol 2nd edition

The SCL Delay and Disruption Protocol provides a guide on delay and disruption issues that arise on construction projects. It outlines several methodologies for delay analysis, each with its own strengths and weaknesses. The discussed cases highlight the importance of understanding these methodologies and their legal implications in managing construction delays.

1. Impacted As-Planned Analysis: This method involves inserting the delay events into the original schedule and observing the impact on the project completion date.

2. Time Impact Analysis (TIA): This prospective method involves inserting a delay event into the schedule at the time it occurs and assessing its impact on the project completion date.

3. Collapsed As-Built Analysis: Also known as the "but-for" analysis, this method involves removing the delay events from the as-built schedule to see what the schedule would have been "but for" the delays.

4. Windows Analysis: This method involves dividing the project timeline into multiple time windows or slices and analysing each slice's critical path and delays.

5. Longest Path Analysis: This method involves analysing the longest sequence of activities from start to finish, considering their dependencies.

6. As-Planned vs As-Built: This method involves comparing the planned schedule with the actual progress during each time window.

Conclusion

In the dynamic realm of construction, delays wield significant influence over project timelines and budgets. Navigating the legal intricacies of these delays is paramount for any project. This article has explored three Australian cases and their resonance with delay analysis methodologies outlined in the SCL Delay and Disruption Protocol.

Assessing EOT requires considering revised construction programs. An incremental review and analysis aligns with contractual requirements and leads to more accurate delay assessments. It involves reviewing each delay event individually and assessing its impact on the project schedule. This method ensures that each delay event is considered in its proper context, leading to a more accurate assessment of EOT.

In considering the selection of delay analysis methods, it's crucial to acknowledge practical limitations that inevitably influence decision-making. Stakeholders often face constraints such as limited time and resources, which can impact the feasibility of certain analysis approaches. Additionally, the unique characteristics of each project, including its complexity and the availability of data, play a significant role in determining the most appropriate methodology. While theoretical ideals are important, practical considerations must also be weighed carefully. Striking a balance between analytical robustness and pragmatic feasibility is essential to ensure that delay analyses are not only accurate but also actionable within the constraints of real-world project environments. By recognising and addressing these practical limitations, stakeholders can make informed decisions that effectively manage construction delays and facilitate project success.

The SCL Delay and Disruption Protocol serves as a guiding beacon in navigating delay and disruption issues on construction projects, offering various methodologies for delay analysis. These methodologies, ranging from Impacted As-Planned Analysis to As-Planned vs As-Built comparison, provide valuable tools for managing construction delays effectively.

In conclusion, grasping the intricacies of delay analysis methodologies and their legal ramifications, as well as practical limitations, is paramount. It empowers professionals to mitigate the impact of delays, fulfil contractual obligations, and effectively resolve disputes.