The Week That Was - 17 February 2023

Published on 17 February 2023

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

Supplier loses "battle of the forms" and is liable for unsuitable stone – BDW Trading Ltd v Lantoom Ltd [2023] EWHC 183 (TCC)

Jefford J has held that stone used in the external leaf of cavity walls on a residential development was of unsatisfactory quality.  In finding the supplier liable, Jefford J rejected their "battle of the forms" argument that the delivery note amounted to a counter-offer, accepted by signature by the contractor's on-site staff on delivery.

Jefford J also reaffirmed the importance of clarity in identifying suitable materials and their intended use, while stressing that this was only a decision about the suitability of the actual stone delivered to BDW.  The question of whether the replacement of all the stone was reasonable and proportionate by way of remedial works remains outstanding, to be determined at the separate quantum hearing to follow, which may be of wider interest.

For the full judgment, click here.
Contracts issued to developers for repairs on unsafe buildings above 11m

On 30 January 2023, contracts were issued to developers, committing them to repair unsafe buildings over 11m which had been built or remediated in the last 30 years.  

Previous proposals for leaseholders of mid-rise blocks had relied upon Government support via loans, but this approach was scrapped.  Instead, the focus has now shifted back to the industry, a move prompted by the major lenders confirming that they would again consider applications on properties covered by leaseholder protections in the Building Safety Act, Government or developer remedial scheme(s).  

Legislation for a "Responsible Actors Scheme" is proposed for the Spring, allowing the Secretary of State to block development by, and building regulations approval for, developers who do not sign up or abide by the terms of the contract.

For the full announcement, see here
Supreme Court finds Tate Modern viewing platform a nuisance - Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4

On a 3:2 majority judgment, the Supreme Court allowed the appeal of residents of flats overlooked by the Tate's viewing platform on the top floor of the Blavatnik Building and consequently photographed and viewed by members of the public from the platform.  The majority considered that there was no reason why overlooking could not amount to a private nuisance and that the public utility of the disputed use was relevant to remedy, not liability.

The proper test for the disputed use was whether it was a "common and ordinary use" of the Tate's land.  Here, this was not the case, even for an art museum in built-up South London.  The minority preferred an objective reasonableness standard informed by the character of the locality and did not consider that the trial judge had erred in finding that normal screening measures could be taken as part of his assessment.

The Supreme Court's summary of the judgment is here, with the full judgment here.
ONS Publishes its December 2022 and Q4 Construction statistics

The ONS has provided its analysis of construction output for December.  They have shown that, whilst housing work is contracting, non-housing work has remained resilient.  In a similar manner to November, the areas of growth remained in the construction of infrastructure and non-housing repairs, whereas new private housing fell by 2.3% and private housing repair and maintenance dropped by 8.5%. 

Construction output as a total rose by a total of 0.3% in Quarter 4 (September to December).  The main positive contribution came from infrastructure which grew by 6.5%.  This is the first positive quarterly growth in infrastructure since Quarter 3 (July to September) in 2021.  The main negative contributions in Quarter 4 came from private housing (both new work and R&M) as both saw quarterly falls of 3.2% and 3.5%, respectively. 

A full copy of the ONS report can be read here.

The Senedd cancels major road expansion in Wales.

The Welsh Parliament, the Senedd, has scrapped many of its construction projects to help it meet its net zero commitments.  Major projects, such as the planned third Menai Bridge which connects Anglesey to Flintshire, are among the projects to be scrapped.  This follows a review by an expert panel set up in June 2021 as part of the roads review commission.  Lee Waters MS, the deputy climate change minister stated, “As the review points out, the bypass that was demanded to relieve congestion often ends up leading to extra traffic, which in time brings further demands for extra lanes, wider junctions and more roads,” Waters said. “Round and round we go, emitting more and more carbon as we do it and we will not get to net zero unless we stop doing the same thing over and over.

To read more, please click here.

Thanks to  Emrys Moore and Gareth Jenkins 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.

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