The National Infrastructure Commission and Constructing Excellence recently considered the transformative use of data in infrastructure. We anticipate some of the likely legal challenges.

How can new technologies improve infrastructure productivity?

In December 2017, the National Infrastructure Commission (NIC) published its report "Data for the Public Good". The report is its response to the Chancellor’s question in his Autumn Statement 2016: "How can new technologies improve the productivity of infrastructure?

The NIC concluded that, not only will better collation and sharing of data on the UK's infrastructure provide significant benefits, but that data itself should be seen as an integral part of the UK's infrastructure.

The NIC offered a number of recommendations which can be broadly summarised as:

  1. encouraging a consistency of approach – for example by developing standards and formats for data capture and sharing
  2. promoting a shift towards minimum levels of commercial confidentiality for infrastructure data – to increase the pool of relevant data available from both the public and private sectors
  3. strengthening the role of regulators to improve the quality and openness of infrastructure data
  4. developing a digital twin model of the UK’s infrastructure, which will ultimately have predictive capability to simulate the UK’s entire infrastructure system.

Data as a national resource

The vision is that those developing and operating infrastructure in the UK will ultimately have access to (and contribute to) a national resource of consolidated, readily accessible data across multiple sectors on the condition of the country’s infrastructure system as a whole. This data would allow everyone involved to make informed decision on the most cost effective way of designing, building, managing and ultimately decommissioning those assets. Examples include:

  • optimising decisions on the most efficient use of energy resources
  • the impact of construction works on the operation of the transport network
  • how to efficiently respond to severe weather events.

The potential benefits are staggering, with billions of pounds of potential efficiency savings across the whole life of infrastructure assets. But the NIC’s timeframe is, by design, long term (10 to 30 years) so how is the use of big data likely to impact the construction industry in the shorter term?

How will big data impact the construction industry?

This was something that was explored at the Constructing Excellence national conference in December 2017. Burges Salmon construction and engineering partner, Marcus Harling, chaired a panel session asking "Is data the currency of the future"?

Data is already changing how construction projects are designed, constructed and managed. Building Information Modelling (BIM) Level 2 has been mandated on public sector contracts since 2016 (leading to greater take up in the private sector). However, the view of the panel was that BIM is merely a stepping stone to more efficient means of data driven design and operation. For example, in the future, data tagging of construction products could allow:

  • automation of design – with intelligent systems combining all available construction products in such a way as to offer the cheapest, most sustainable, quickest or most durable building
  • increased off-site fabrication – with far greater utilisation and less risk of mistakes once components are brought to site for construction (see our previous article on off-site fabrication)
  • greater certainty on maintenance costs – giving an accurate picture of the lifetime cost of use of construction products allowing informed decisions to be made during specification.

One common theme arising from both the NIC report and the Constructing Excellence discussions is that data must be captured and made available in a way which is relevant, accessible and, crucially, credible to those who will have to use it.

What are the legal challenges?

Changes in the way of working will need to be reflected in the construction contracts that underpin the projects. Particular issues that will need to be dealt with differently include the ownership, copyright and use of data.

Most people in the industry will be used to copyright clauses and, increasingly, the inclusion of provisions intended to facilitate BIM requirements, such as the rights for all parties to access the BIM model. The use of big data in the way anticipated by NIC and Constructing Excellence will require fundamental shifts in the way these issues are currently addressed and a reconsideration of what currently constitutes “market position”.

The challenge will be exacerbated by an increasing requirement for the construction and technology sectors to collaborate to deliver the anticipated benefits. The precise forms that this collaboration takes remains to be seen. Examples of how collaboration could work include JVs, collaboration agreements or market consolidation through one party acquiring the other to bring the missing element of expertise in-house. Whichever route is adopted, the contracting approach traditionally taken by the two sectors in respect of key issues such as liability for delay or health and safety are so far apart that there will need to be a cultural shift from both in order to be able to reach agreement.

Some of the legal challenges that need to be addressed have begun to be explored through the use of data in BIM models. However, these have not yet been thoroughly tested by the courts.

For example, in the 2017 case of Trant Engineering Ltd v Mott MacDonald Ltd the High Court considered issues surrounding access to design data hosted on a project platform after a dispute resulted in a consultant revoking the client's access to that platform. The case related to an application for an interim injunction and so full consideration by the court of these issues is still awaited.

What is clear is that issues around hosting of data, access to the central platform and rights to data in the event of disputes are all issues that need to be considered at the outset of a project, and not at the point at which a dispute arises. This goes to the core of the NIC’s recommendation 2 above and will require a change of attitude from many involved in the industry, not least the lawyers!