Waivers in design and construction

[edit] What are waivers?

Waivers are the act of intentionally relinquishing, abandoning or giving up a known right, claim, privilege or fee etc. So for example if a fee is waived then the party who was due to receive it has agreed to pass over their right to the payment, or in agreeing to a settlement via a third party, both other parties may be required to waive their right of appeal. In many applications a waiver is a formal and legal document or agreement that releases said party from said rights or obligations outlined within a contract or legal arrangement. In British English terms such as exemption, variation, relinquishment, abandonment and others, may be used which may have slightly differing meanings in legal terms.

[edit] In what areas are waivers used?

There are a broad variety of areas where waivers might be applied in relation to the design and construction of buildings, some relatively minor, whilst others more significant. Loosely speaking the term waiver might be found in relation to construction contracts, planning permissions, architectural services, design competitions, as well as education, though there are many more possible applications, some are described below.

[edit] Waivers relating to construction contracts

Waivers are used to modify or waive specific terms or conditions within a contract or legal agreement. They are often used to address changes, disputes, or unexpected circumstances that arise during the course of a construction project.

[edit] Lien waivers

Lien waivers relinquish the right to retain possession of another person’s property pending the payment of a debt. A common example is automobiles in a mechanics garage, often referred to as mechanic’s lien. The same approach maybe adopted in construction, a type of lien that gives a contractor a security interest in the property being worked on until they have been paid for their work on that property, in these cases often called a labourer or artisan's lien. A lien waiver in this case is normally a document signed by the contractor, or supplier involved in the project that relinquishes these rights, however in exchange for waiving their lien rights, the party may receive payment for the services or materials.

[edit] Change order waivers

Change order waivers, can be a contentious area, for example if project manager fails to enforce an agreed change order it may be interpreted as a waiver, though the validity of this will depend on the nature of the change order and in many cases the waiver if not formally agreed may not be valid. The waiver likely to require acknowledgement of the change order and require parties to formally agree on adjustments to cost or schedule in lieu of the change, thus acting as a waiver. For further information see change order for construction contracts.

[edit] Delay or time extension waivers

Similar to change order waivers, delay or time extension waivers need to be formally agreed by all parties. In these cases a client may waive their right, under the contract to claim damages for a project delays, thus agreeing to a time extension without penalty. These types of waiver may occur where extenuating or unforeseen circumstances are agreed as being valid within a project. For further information see time extensions in construction contracts.

[edit] Waivers relating to planning applications

[edit] Infrastructure agreements

Section 106 (S106) agreements may relate to waivers, or in UK planning, more commonly referred to as exemptions to certain planning obligations. They are intended to make acceptable developments which may otherwise be considered unacceptable. Examples include; requiring that the development provides affordable housing, requiring compensation for the loss of open space, or making a contribution to the provision of additional infrastructure to serve the development. S106 agreements have in general been scaled back to cover site specific issues and regulations, since the introduction of the Community Infrastructure Levy (CIL)

The Community Infrastructure Levy (CIL) was introduced by the Planning Act 2008, and as such local authorities are permitted, but not required to introduce a CIL wth respect to a development. These differ from S106 payments in that they can contribute to a wider range of developments and across a number of developers, defined within a published tariff schedule it is by some considered as more transparent and simpler. To the same extent however these agreements may be considered as waivers, or in UK planning, more commonly referred to as exemptions to certain planning obligations.

Essentially these types of agreements within UK can allow for waivers, exemptions and exceptions to planning policies in exchange for defined contributions or considered benefits to the local community, such as affordable housing, infrastructure improvements, or environmental enhancement, the differences remain in the definition of what is considered local to the development.

For further information see Section 106 exemption, Section 106 agreement, and Community infrastructure levy.

[edit] Material Amendments

There is no statutory definition of what a ‘minor material amendment’, ‘non-material amendment’ or ‘material amendment’ mean, instead, local authorities are responsible for deciding, given the local context in each case. In some cases the amendment may be considered a waiver, if the planning authority deem a change can be made without a new application, primarily where it concerns slight changes to a development that do not significantly alter the original approval.

Guidance simply states that, ‘in deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made’, and that, ‘minor material amendments are likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.’

In the UK it may often be the case that the terms exemption or variances are used to express what may also be considered as a waiver. Other examples exist with similar relevance such as Section 73 of the Town and Country Planning Act 1990 which allows an application for permission to develop without complying with a condition or conditions that were previously imposed on a planning permission. In this case the previous condition are waived by the planning authority, that is to say the current application become exempt from those conditions or there is a variance to those conditions.