Setting the parameters for the meaning of 'design life'
Blackpool Borough Council v VolkerFitzpatrick Limited & Others
Weightmans acted for one of the defendants in the complex multi-party and high value claim by Blackpool Borough Council that a seaside tram depot (“the depot”) designed by VolkerFitzpatrick (“VFL”), failed to meet design life requirements. On 15 June 2020, the High Court handed down its judgment in the case of Blackpool Borough Council v Volkerfitzpatrick Limited & Ors  EWHC 1523 (TCC).
The key matter for which the ratio of the judgment provides useful guidance is the meaning of 'design life', an important term deployed in a large number of construction contracts.
Blackpool Borough Council (“the claimant”) engaged VFL to design and build a tram depot under an amended NEC3 standard form design and build contract. Significant to the case was the fact that the tram depot, which was completed in 2011, is located next to the Irish Sea and subject to harsh environmental conditions.
The key contractual issue was whether the cold formed steel components used as part of the framework of the depot were required to have a design life of 50 years, or 25 years. VFL was engaged by the claimant to design and construct the depot, which was completed in 2011.
The claimant’s primary allegation was that various elements of the tram depot were corroding prematurely and would, therefore, fail to meet the contractual design life requirements. Unsurprisingly the claimant sought to argue that the longer period of 50 years applied with the defendant parties arguing that the shorter span was more accurate. What might have presented as a straightforward issues unfurled into a number of complex sub-issues, which the judgment addresses in detail.
The main contract was a modified NEC3 standard form design and build contract and included a Works Information and Functional Procurement Specification prepared by the claimant. The Works Information required that VFL ensure its design for the works complied with various matters including that (a) there be no ‘nonstandard' or ‘unusually onerous' maintenance requirements having regard to normal maintenance which is applicable for works of a similar character as the Works, (b) "the materials and design are suitable, durable and appropriate for a sea front location" ("the suitability obligation") and (c) "unless otherwise specified in the Functional Procurement Specification, have a design life of at least 20 years" ("the minimum design life obligation").
The claimant submitted that these were strict obligations whereas VFL submitted that such obligations were reasonable care obligations only. All counsel placed reliance on the decision of the Supreme Court in MT Hojgaard v E.ON  UKSC 59. The judge ruled that the contractual design life obligation period was either 20 or 25 years (rather than the 50 years contended for by the claimant) and that the claimant's case that the cold formed components were inadequate for their design life or otherwise unsuitable was not proven. Limited replacement or repairs were needed to other aspects of the works.
Defining design life
The ratio of the court’s decision was as to the meaning of 'design life', a term which was not defined in the contract. The judge referred to two standards which, in his view, were of particular use.
The judge opined on BS ISO 15686-1:2000 stating that it illustrated the "interplay between design life, service life, performance and durability":
154. BS ISO 15686-1:2000, entitled “buildings and constructed assets - service life planning”, contains a definition of design life as the service life intended by the designer. In turn the service life is defined as the period of time after installation during which a building or its parts meets or exceeds the performance requirements. A performance requirement is defined as a minimum acceptable level of a critical property. There is also a definition of durability as the capability of a building or its parts to perform its required function over a specified period of time under the influence of the agents anticipated in service.
The judge commented regarding the second standard, BS EN 1990:2002 as follows:
155. BS EN 1990:2002, entitled “basis of structural design”, contains at 220.127.116.11 a reference to “design working life”, which means the “assumed period for which a structure or part of it is to be used for its intended purpose with anticipated maintenance but without major repair being necessary”. Maintenance is defined in the same standard as being the “set of activities performed during the working life of the structure in order to enable it to fulfil the requirements for reliability”.
Having considered these standards, the judge concluded that "it cannot realistically be thought that a structure should be intended to be maintenance-free for the whole of its design life, whereas it can reasonably be assumed that it ought not to need major repairs over that period."
The judge's central point is that, in determining what is meant by design life, a distinction is required between anticipated maintenance and major repair, which he explained is a question of fact and degree in any given case.
Applying the contract terms applicable to maintenance the judge decided that the anticipated maintenance for the tram deport was "limited to maintenance which is not 'non-standard' or not 'unusually onerous' having regard to normal construction operations and maintenance requirements which are applicable for works of a similar character".
Therefore, anticipated maintenance is a key ingredient in the attainment of design life. This is an important point for practitioners to remember when analysing design life obligations, and when making or considering allegations that such obligations have been breached. The judgment contains further helpful commentary on the distinctions between ordinary maintenance, cleaning, and major interventions. It will be interesting to see how this reasoning is applied in future disputes concerning design life where that term is undefined.