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The Week That Was - 18 February 2022

Published on 18 February 2022

Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.

RICS article series – Article 1.

This is the first in RPC's series of articles explaining the procedure for disciplinary investigations against chartered surveyors.  Article 1 explores the process and gives valuable tools for chartered surveyors navigating a disciplinary investigation.

To access the article, please click here.

Fire Risk Assessments – The latest developments

The British Standards Institution has published PAS 9980:2022, the new code of practice for fire risk appraisals of external wall construction and cladding of existing blocks of flats. In this article, RPC sets out the main changes to be brought about following the publication of the new code of practice.

To access the article, please click here.

Former deputy chief whip named as new Housing Minister

In the latest Cabinet re-shuffle, Chris Pincher has been removed as Housing Minister and Stuart Andrew (the Conservative MP for Pudsey, Horsforth and Aireborough) has instead been appointed to the role. Mr Andrew is the 11th Housing Minister in as many years. Overall, he will be the 20th person to hold the role since 1997.

Richard Beresford, chief executive of the National Federation of Builders, has welcomed Mr Andrew to his new role. However, he considers that he has a tough job on his hands, adding that "We desperately need an engaged housing minister who understands the planning system's impact on levelling up, SME builders and the broader housing crisis.

For further information, please click here.

Fileturn Ltd v Lincoln Plaza Hotel Co Ltd

The Claimant and the Defendant had entered into a contract relating to interior fit out works. The parties had amended the standard wording of the contract (which usually provided that, in the case of an adjudication, the adjudicator would be nominated by RICS) to instead agree that, in the case of an adjudication, the adjudicator would be nominated by the chair of the Technology and Construction Bar Association (TECBAR).

In the event, a dispute arose which was decided at adjudication in favour of the Claimant. However, the Claimant had mistakenly applied to RICS for the appointment of the adjudicator.  The Claimant therefore applied to TECBAR, and a second adjudication subsequently took place. That adjudicator also found in favour of the Claimant. The Defendant nevertheless failed to pay, and the Claimant made an application to Court to enforce the second decision.

The Court was satisfied that the first adjudication was a nullity, but that the second adjudication had been properly constituted. Despite the second adjudicator having had sight of the decision of the first adjudicator, the Court was satisfied that the second adjudicator had only glanced at that decision in the context of his own appointment. As such, the decision of the second adjudicator had been formed on the merits. Because there was no arguable defence to an application to enforce that decision, the Defendant was ordered to pay the costs as set out in the decision, together with the Claimant's costs of bringing the application on an indemnity basis.

A case summary can be found here (behind pay wall).

Government to protect leaseholders with new laws to make industry pay for building safety.

New measures intended to try to get the industry to pay to remove cladding and protect leaseholders from high costs have been unveiled by Secretary of State for Levelling Up, Michael Gove.

The Government has outlined how it intends to make developers and manufacturers in the housing industry responsible for the costs of replacing dangerous cladding in a bid to protect leaseholders.  For those in industry who do not comply, the Government will be able to block planning permission and building control sign-off on developments, effectively preventing them from building and selling new homes.

Companies have been asked to agree to propositions including:

  • Remediating buildings over 11 metres that they have played a role in developing or refurbishing.
  • Making financial contributions towards a remediation fund for all other 11-18 metre buildings with defective cladding.
  • Committing to providing information on all buildings over 11 metres, constructed within the last 30 years, where there are historic safety defects and where the company was involved in the construction. 

Further proposals include:   

  • Developers and product manufacturers who refuse to help fix cladding issues may be blocked from housing market;
  • No leaseholder living in medium or high-rise buildings will have to pay anything for the removal of unsafe cladding;
  • New powers will allow cladding companies to be sued and subject to fines for defective products; and
  • Protection for leaseholders extended to cover other fire safety defects.

For further information, please click here and here.

RIBA calls for mass insulation of England's interwar suburbs

The Royal Institute of British Architects (RIBA) has estimated that insulation, double and triple glazing and gas boiler replacement on England's 3.3m inter-war properties – built between 1919 and 1930- could reduce England's carbon emissions by as much as 4%.

RIBA has costed the works at £38bn, far in excess of the government's green home subsidies. However, with economies of scale due to the repetitive layout and terrace design of many of the homes it is hoped that this sum could be much lower. The RIBA plan coincides with a campaign by RetroFirst which encourages the prioritisation of retrofitting existing buildings over demolition and rebuild.

Currently the energy use in homes accounts for about 16% of the UK's greenhouse gas emissions, producing a total of 58.5m tonnes of CO2 every year. The independent Climate Change Committee has calculated that to get to net zero the UK needs to spend £55bn on improving efficiency in existing homes by 2050, but of every £12bn spent there would be annual savings of £5bn.

For further information, please click here.

For further information relating to the RetroFirst campaign, please click here.

Rushbond Plc v The JS Design Partnership LLP Services Ltd

The claim arose out of a fire in 2014 at a cinema owned by the Claimant. The Claimant’s case was that the architect employed by the Defendant left the access door unlocked for an hour while visiting the property with an engineer and surveyor to carry out an inspection on behalf of a potential purchaser. The Claimant's case was that, during the period of time in which the door was unlocked, one or more intruders were able to enter the property and start the fire, which caused damage of more than £6.5m.

At first instance, Mrs Justice O'Farrell held that the case was one of "pure omission" and struck out the Claimant's claim. The architect's failure to lock the door merely provided the occasion for the intruder to gain access to the building, but not the means by which the intruder could start the fire and did not cause the harm.

The Court of Appeal reversed the decision of the lower court, finding that the alleged duty of care was arguable and that the case should proceed to trial. Lord Justice Coulson, giving the leading judgment set out three reasons for his decision:

  • It was "fanciful" to suggest that the respondent did not, while the sole occupant of the property and entrusted with keys, owe the appellant a duty to take reasonable care.
  • The respondent was an active participant in the relevant events. By failing to lock the door after deactivating the alarm, it was at least arguable that the respondent's architect had positively made the situation worse – "He had rendered a secure building insecure, at least for the duration of his visit".
  • The Court held that the case fell within an established line of authority regarding the duty to take reasonable steps to keep property secure, the case being indistinguishable from Stansbie v Troman [1948] 

The case serves as a good example of the proper operation of the "pure omissions" principle, and the risks which are inherent in taking technical points in face of an established line of authority.

A copy of the judgment can be found here.
Thanks to Charlie Underwood, Hannah McDonagh, Lucy Cadwallader and Faye Hopton-Cottrell for contributing to this week's edition.

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice.  We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date.  You should seek legal or other professional advice before acting or relying on any of the content