8th December 2023
Those involved in offshore construction will wish to take note of a TCC judgment handed down on 8 December 2023 regarding the territorial reach of Part II of the Housing Grants Construction and Regeneration Act 1996 as amended (“the Construction Act”) which Act imposes compulsory adjudication and payment provisions on certain construction contracts.
Whilst it is generally thought that the Construction Act does not apply to offshore work, the relevant sections of the Construction Act do not use the term “offshore”.
- Section 104(6)(b) requires, though, that works must be “in England”. Statute defines “England” as the collection of counties to be mered (surveyed and drawn on maps) by the Ordnance Survey (“the OS”).
- Section 105(1) also makes reference to “land” which statute and case law suggests includes land covered with water but only up to the low water line and not the seabed beyond that line.
On the facts of Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC) the parties entered into a contract for the drilling of four piles into an area referred to in the contract specification as “seabed”. The piles and works were beyond the low water line of the shore and on the seaward side of the OS boundary line cutting across the River Fowey which line was said to mark ‘the intangible line where the level of the river meets the level of the sea at low water’.
Despite the statutory definition of “England” – meaning in effect anything on the landward side of boundaries drawn on OS maps – in this TCC judgment it was held that the provisions of Part II of the Construction Act did apply beyond – i.e. on the seaward side of – the boundary line shown on the OS map and beyond the notional line where the level of the river meets the level of the sea at low water.
The Court held that the works fall within the reach of the Construction Act as its reach extends all the way to the ‘baseline’ used to measure the ‘territorial sea’– a concept familiar in public international law contexts but not referred to in Part II of the Construction Act – even though that was on the seaward side of the OS boundary line representing “England” and on the seaward side of the notional line where the river ends and the sea begins.
This judgment serves as a reminder that ‘offshore’ works in parts of the sea inside a boundary drawn by the OS (e.g. waters off Cardiff, Newport and Bristol) are arguably caught by s.104 of the Construction Act, and adds to that category works in ‘internal waters’ up to the ‘baseline’ even if beyond the OS boundary representing “England”.
The TCC judgment can be read via this link: Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC).
Andrew Stevens acted for the Defendant.
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