This summer, OC released its latest research report on smart cities, “Smart cities in Europe: the future of the built environment”, written in collaboration with the Lawyer Research Service. How can the built environment become smarter? What are the challenges and obstacles that might prevent this from happening? These are the two core questions this new report sets out to address. To obtain answers we conducted a series of interviews with some of the leading individuals in the smart built environment movement, including Daniel Cashmore, Senior Associate, Osborne Clarke.
What is BIM?
The aim of BIM is to have a platform where you can have all of the information available for a building in a 3D model (or actually up to 5D), where you can see the design of a building, drilling right down to where the plug sockets and the light switches are located.
The 5D aspect relates to all the duct work within the building, where you can see where components were sourced from and the cost. So you have an audit trail of how much it cost, the desks that were ordered etc. People get excited about this because it could be used as a template elsewhere and from a lifecycle point of view when you hand over from construction to O&M there is a good audit trail. There are cost savings to be made from this.
What role has the government played in driving this forward?
Level 0 is 2D CAD drawings. Level 1 is CAD in a 2 or 3D format with some collaboration.
From the beginning of April 2016, BIM level 2 was mandated on all government projects going forward. The UK government is already looking at working to BIM level 3. They are really leading the way on the BIM front. They are playing a major role in leading the construction industry into the 21st century, because statistics show that historically it hasn’t been willing to invest in and adopt technology. Through this initiative more construction companies will become familiar with BIM and as the benefits are realised and the technology better understood it will become the norm on private projects too.
The government is ahead of the private sector on this, although big private projects will also require this. Uptake has already increased significantly recently. According to research I’ve seen adoption in the contractor industry went from 58% now to 86% next year and then 95% in the next three years.
What are the legal obstacles to this being implemented?
There are issues regarding the ownership of and reliance on data. For example, 20 or so companies with different disciplines or roles might plug data into a single integrated model. Others will then be relying on this model to design their own works. How this works in terms of IP rights, licences, and what recourse is available if data is relied on and showed to be wrong, are all issues.
There is also a cyber security issue. There will be detailed 3D models of critical infrastructure, such as airports, rail infrastructure (e.g. crossrail), hospitals, etc. This is not available to the public but is extremely sensitive data and there is a risk that data could be hacked.
Another aspect is insurance. To what extent are insurers going to react to this? The feeling at the moment is that there won’t be exclusions as long as you tell insurers you are using BIM level 2.
I think the biggest danger with BIM is that people may be too relaxed about the legal implications. The general feeling is that as long as IP rights are covered off, it’s fine. However, an important aspect of using BIM is the adoption of a ‘BIM protocol’. This maps out some of the practical issues about how the model is going to be delivered and what level of detail is required. There are challenges and potential unforeseen consequences of adopting the CIC Protocol – the leading industry standard protocol which is adopted in most standard form contracts. The protocol says it takes precedence over the contract terms which is potentially dangerous, particularly as some of the clauses are much less onerous than you otherwise see in the standard forms. The danger is you water down of the some carefully negotiated and drafted design obligations.
Practically, we also expect to see issues with compliance by subcontractors as compliance with BIM requires investment in both the software and also the training. Tier 1 contractors might have to step in to fill this void until subcontractors are tooled up. This creates issues in itself. We also expect to see the law to develop in relation to the continuing duty to review design, the duty to warn and the scope of tortious liability in light of BIM and the use of an integrated single model.
Click here to download a copy of the research report “Smart cities in Europe: the future of the built environment”.
Contact: Daniel Cashmore, Senior Associate.
These materials are written and provided for general information purposes only. They are not intended and should not be used as a substitute for taking legal advise. Specific legal advice should be taken before acting on any of the topics covered.