Term 11
The Vendor reserves the right to modify materials specifications and to vary dimensions of the site and building during construction.
It is submitted that this term is unfair as it has the object or effect described in paragraph 1 (j), (k) and (m) of Schedule 3 to the 1995 Regulations. This term allows the Builder the right to change the materials, the specifications and to vary the dimensions of the site and the building during construction and is at total variance with the Standard Building Agreement. In that regard, General Condition 2(a) of the aforementioned agreement provides that the materials and workmanship shall be of the respective kinds described in the plans and where not so described shall be of reasonable quality. General Condition 2(b) of the Standard Building Contract provides for a situation where a Builder is unable to produce a particular material specified in the Contract by stating that the Builder is entitled to use other materials, fittings or appliances "of a similar nature and cost" or more expensive ones that those provided for in the plans or specifications without extra cost to the Consumer (described as "Purchaser"), but if any of the alternative materials or fittings are less expensive than those provided for in the plans this General Condition provides that an allowance should be made to the Consumer/Purchaser. General Condition 2(c) of the Standard Building Agreement allows for minor deviations from the plans. However, the wording of term 11 in the First Schedule is not limited to minor deviations or variations in the dimensions of the site or the building and could in theory allow major deviations. It is submitted that this would be unfair and imbalance to Consumers as they would not get what they contracted for. In addition, pursuant to General Condition 2(e) of the Standard Building Agreement there is a provision for a situation where the Purchaser will in some instances be required to notify the Builder of the Consumer/Purchaser's choice of any materials, fittings or appliances, etc.
However, if the Consumer/Purchaser fails to make his or her choice known to the Builder within 14 days of being requested to do so then the Builder may make the decision on the materials, fittings or appliances as the case may be and the Builder will be entitled to recover the costs of any delay by the Consumer/Purchaser. However, the wording of the term the subject matter of these proceedings leaves all of these decisions to the Builder and allows the Builder to decide any modifications to the specifications of materials or the dimensions of the site or the building during construction and it is submitted that this is unfairly imbalanced and has the object or effect described in paragraph 1 (j), (k) and (l) of Schedule 3 of the 1995 Regulations.
