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Construction Law: May 2024

Editor’s comment
Work will flow soon from giant water investment programme
The water industry’s giant AMP 8 investment programme will place procurement under the spotlight, says Editor Nick Barrett.

News
Our regular news round up includes a survey saying collaboration is on the rise; Network Rail promises a partnering approach in its new framework; and a warning that carbon reduction policy risks legal challenge.

Legal terms explained
Isabella Salame of Herbert Smith Freehills LLP explains what is meant by non-delegable duties.

Guest editor
JCT 2024 ducks the difficult issues
JCT’s Design and Build contract has been updated for the first time in eight years. Guest Editor Barry Hembling of Watson Farley & Williams LLP asks whether the updates are keeping pace with fast moving developments in construction law?

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our latest Reports From the Courts series article comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who look at a judgment confirming that, whilst a defect must be more than only aesthetic or inconvenient, the design intent of the property in question is relevant and that the measure of damages must reflect the likely outcome had the services been provided in a professional manner; and another that provides some clarification for parties seeking or responding to Building Liability Orders.

Analysis
Construction awaits clarity on energy investment
Is the UK making credible progress towards securing our energy supplies or is it, as researchers suggest, actually going backwards in terms of achieving commitments made only two years ago?

“Worst client in the UK” issues revised terms and conditions
New, in-house terms and conditions of contract are to be used by Transport Scotland for the Tay Crossing to Ballinluig project, part of the much delayed £3.7 billion A9 Dualling programme. This might be good news, but given that the new terms and conditions are being issued by the alleged “worst client in the UK” should any great hopes be raised just yet?

CL guides
Force Majeure, Frustration and Construction Contracts
In our latest Construction Guides series article Tom Manley of DLA Piper UK LLP explains the legal principles behind Force Majeure clauses and their practical implications.

Artificial Intelligence
The Future of Artificial Intelligence in Resolving Construction Disputes
Andrew Drennan and Niall Tutt of Alvarez & Marsal Disputes and Investigations review the role of the construction expert in conjunction with the rising use of artificial intelligence (AI). Disputes might benefit from early analysis of delays, cost overruns and evidence-based mitigation made possible.

Contractor insolvency
Where there is a (living) will, there is a way
Isobel Moorhouse and Jane Hughes of Trowers & Hamlins LLP explain what a ‘Living Will’ is, and ask whether the concept be adapted by employers to apply to contractor insolvencies?.

Adjudication
Smash and grab adjudications – getting your money back
Doug Wass of Macfarlanes argues that the Construction Act has been working in so far as industry cash flow has been improved, but the principle that a payor must pay the payee the Notified Sum if the payor fails to issue a valid payment notice or pay less notice has given rise to some risks of injustice that the courts are still grappling with.

Arbitration
Restructuring versus arbitral awards – will the debt survive?
Paul-Raphael Shehadeh of Duane Morris analyses a dispute that will be of great interest to insolvency and international arbitration practitioners, that highlights the benefits of a negotiated dispute settlement.

Insurance
Joint names clauses under scrutiny again
Our insurance expert John D Wright of JD Risk Associates examines Joint Names Clauses which have been in use for over 40 years and were hoped to result in less litigation, but the industry still struggles to gain the benefits and court analysis of clauses themselves is common.

Alternative dispute resolution
Conditions Precedent and Amendments to Contract – a Cautionary tale for Scottish Contractors
Cheryl Ferguson of Dentons UK and Middle East LLP looks at a Scottish case that provides a cautionary tale on acceptance of amendments that rob the contractor of alternative routes of recourse.

Teesworks discussions on making public pay contamination costs ongoing, report reveals

Making the public purse liable for contamination clear up at the Teesworks former steel site has been revealed to be under discussion by the publicly owned South Tees Development Corporation (STDC) and two businessmen who own 90% of the site’s development vehicle, despite a government review having been told earlier this year that the plan had been abandoned.

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Appeal court grants judicial review challenge to Stonehenge campaigners

Anti Stonehenge road tunnel campaigners have won the right to challenge the outcome of a judicial review which said the scheme that passes near the world heritage site on the A303 could go ahead.

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Evolving risks and artificial intelligence to impact on standard contracts, says survey

The biggest source of disputes relating to construction projects remains project delays, payment issues, and scope of work, according to the latest International Construction Study from CMS and YouGov.

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Biodiversity uncertainty for project highlighted in NAO report

Lack of resources available to local authorities may hinder implementation of the UK’s Biodiversity Net Gain (BNG) plans, says a report from government’s spending watchdog the National Audit Office (NAO).

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IPA and NIC to be scrapped by a Labour government

The Labour Party will scrap the Infrastructure and Projects Authority (IPA) and National Infrastructure Commission (NIC) if it wins the General Election, and replace them with a new body to be called the National Infrastructure and Service Transformation Authority (NISTA).

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Council seeks statutory review over planning permission

Reading Borough Council has applied for a statutory review of the Secretary of State for Levelling Up, Housing and Communities' decision to grant planning permission to a 600-home development scheme that had been denied planning permission by the Council.

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Supreme Court supports Sizewell C Development Consent Order

The Supreme Court has rejected a legal challenge to the Sizewell C nuclear power station Development Consent Order (DCO).

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Government wins landmark remediation legal action

The Department for Levelling Up, Housing and Communities has won a landmark legal challenge against a freeholder that will force it to fix serious building safety issues in a Stevenage tower block.

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Public sector project management slammed in MPs report

Public sector major project capabilities have been slammed by the House of Commons Public Accounts Committee (PAC) in a report that says government departments have become over reliant on consultancies and engineering and construction companies as civil service technical and engineering skills have been neglected.

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Scottish Parliament unanimously approves cladding remediation Bill

The Scottish Parliament has unanimously approved legislation that gives Ministers powers to assesses and remediate buildings with unsafe cladding where consent of the owners has not been provided.

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