The Week That Was - 26 August 2022

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

RICS calls for industry and Government to future-proof UK construction

RICS considers economic, social and environmental sustainability should be placed at the heart of the construction industry and is delivering a number of work streams actioning change on the ground.  RICS' proposed workstreams to future-proof the construction sector include:

• Decarbonisation – RICS standards, and the expertise of industry professionals, will enable carbon measurement and reporting at the earliest stages.
• Procurement and collaboration - value and quality, accountability and conflict avoidance must be addressed.
• Productivity - as the construction sector is less efficient than it could be, thought should be given to the structure of industry, including fragmentation, and resulting inefficiencies. 

For this to work, RICS suggests the Government must commit to continued investment in upgrading the UK's infrastructure, as well as mitigating the triple threat of rising costs, material shortages and labour supply.  Relevant to RICS' workstreams, RICS also suggests the Government should procure for value over price; prioritise quality and the lifecycle; manage cost and carbon; encourage inter-disciplinary training; and foster a culture of collaboration and conflict avoidance. 

To find out more, please click here.

Department for Transport provides funding for upgrades to Oxford station

The Government is to fund £161m of upgrades at Oxford Station.  Oxford Station is one of the first projects delivered through the Government’s new scheme SPEED (Swift, Pragmatic and Efficient Enhancement Delivery) which aims to halve the time it takes to complete a rail infrastructure project and slash the cost of project delivery thus helping local areas to build back better through investment.

The upgrades will be completed by 2024 and have been specifically designed to improve passenger experience, better integrate the station into the local road networks and boost economic growth by supporting the creation of almost 10,000 jobs in the area.

Rail Minister, Wendy Morton, commented on the funding stating: "This £161 million will truly transform the region, increasing the number of services for passengers, boosting economic growth by connecting people to new opportunities and increasing freight services between the South and Midlands."

For more information, please click here.

Esso obtains injunction to prevent disruption to pipeline redevelopment project

Esso has won an interim injunction to stop protesters from disrupting work on its £90m pipeline redevelopment project.  Esso is currently redeveloping the majority of its pipeline, running from Boorley Green in Southampton to its terminal storage facility near Heathrow airport. 

Climate activists have argued that the project will double the capacity of fuel being transferred, and would “plan for growth in climate-destroying fossil fuel use”.  Protesters have targeted project sites to disrupt work. 

Whilst the judge noted that protest action came against a background of “strongly held beliefs and concerns about the effect of air travel”, and considered the “legitimate public interest in the changes to the climate”, he concluded that an injunction was “proportionate and necessary to ensure that [Esso] is permitted to carry on its lawful activities”.

Read more here.

Mayfair hotel scheme blocked by planning inspector

Plans prepared by EPR Architects to convert a Mayfair office building into a 70-room hotel and private members’ club, have been refused at appeal.  EPR's proposals involved the excavation of a three-level basement, a new roof terrace and plans for restaurants, a spa and wellness centre, and shops, to seven-storey Leconfield House in Curzon Street.

Westminster City Council refused the application in August last year, saying the developer had provided insufficient evidence that there was no market interest in the building’s ongoing use as offices, and that the basement works would have a “serious impact” on neighbours’ quality of life.

Following a five-day appeal hearing in June, planning inspector Andrea Mageean acknowledged that, while the Ritz Hotel had proposals for a five-storey basement approved under the same policy (for a scheme designed by EPR), there were “circumstantial differences” between that site and the appeal site, and therefore sided with the authority.

Read more here.

Alternative dispute resolution clause in a construction contract imposed a condition precedent to the commencement of litigation

In Children’s Ark Partnerships Ltd v Kajima Construction (Europe) UK Ltd and another [2022] EWHC 1595 (TCC), the Claimants entered into a project agreement with the Brighton and Sussex University Hospital Trust (the Trust) to design, build and finance the redevelopment of a children's hospital.  The Claimant then contracted with the Defendant for provision of the design and construction works (the Contract). 

The Contract provided that:

1. ‘subject to the provisions of the Dispute Resolution Procedure (DRP)’, the courts of England and Wales had exclusive jurisdiction over any claims; 
2. the DRP applied to any dispute or claim arising from the contract.  Under the DRP, all disputes were to be first referred to the ‘Liaison Committee’ (LC) for resolution; and
3. the LC was to be comprised of representatives of the Claimant and the Trust.  Where a dispute was referred to the LC, the LC was to seek to resolve the dispute within 10 business days, and its decision would be final and binding unless otherwise agreed.

There was a dispute and the Claimant ultimately issued proceedings to avoid expiry of the limitation period. The Defendant applied to strike out the claim or set aside the claim form in reliance on CPR 11(1). It argued that the Claimant had failed to comply with a contractual ADR provision and this was a condition precedent to the litigation.  As such, it was submitted that the Court either had no jurisdiction or it should not exercise any jurisdiction it might have. 

The Court concluded that it could stay proceedings if the ADR clause was mandatory and enforceable.  The Court also agreed with the Defendant that the requirement to refer disputes to the LC was a condition precedent.  However, the court found that the obligation to refer disputes to the LC was not enforceable due to uncertainty – specifically, (a) there was no "meaningful description" of the LC procedure; (b) it was not clear how the parties were to refer disputes to LC in the first place nor what the LC had to accomplish before the condition precedent was fulfilled; and (c) the LC would not include any representative of the Defendant.  The Defendant's application was therefore dismissed.

You can read the full judgment here.

Authors for this week's edition: Georgina Haynes, Jess Yates and Ella Ennos-Dann 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.