Algernon Charles Swinburne, Atalanta in Calydon:
“For winter’s rains and ruins are over, and all the season of snows and sins; … And in green underwood and cover, blossom by blossom the spring begins.”
March heralds the start of spring. It’s a month that is traditionally associated with the vernal equinox, the move to British summertime and the budget. While everyone welcomes the first signs of spring, less enthusiasm usually surrounds the loss of an hour’s sleep and the budget. This year was no different and while some commentators may have welcomed the government’s plans, those in construction were disappointed, with little to shout about. You can read all about it, including comment from leading practitioners, on PLC’s budget 2012 page.
Environmental issues have been at the forefront of the news this month, with the announcement that parts of England are in drought. Meanwhile, the government published its proposals to revise environmental legislation (including scrapping site waste management plans) and a consultation on simplifying the CRC, we had news of the action taken in the EU on nuclear safety, more EPC regulations, new asbestos regulations, case studies on the environmental performance of buildings and the Court of Appeal’s judgment in Barr v Biffa (on environmental nuisance claims).
The government has also published its national planning policy framework (NPPF), which has both social and environmental objectives (including protecting the green belt and areas of outstanding natural beauty). Initial reports suggests the implications for the construction industry are good, with more housebuilding and other benefits flowing from the much-heralded presumption in favour of sustainable development.
Public procurement is never far from the news, and during March we saw the High Court consider whether a land sale was public works, EU proposals for a new public procurement directive and measures to open up procurement to SMEs.
Claims consultants are common in the construction industry, particularly in adjudication proceedings. The TCC has held that legal professional privilege does not attach to their documents. It may be too early to say what the ramifications of this judgment are, but claims consultants beware. The level of adjudicators’ fees, RICS’ draft guidance for adjudicators and limitation in adjudication were also under the spotlight.
Other issues considered by the courts include:
- Professional appointments and whether a consultant was obliged to procure a contractor’s performance bond (it wasn’t).
- Could an e-mail chain create an enforceable guarantee (it could).
- Whether an exclusion clause excluded implied terms under the Sale of Goods Act 1979 (it did).
- Electronic disclosure and whether the court will make an order for wasted costs when such disclosure is inadequate (it will).
- Whether unethical behaviour can be economic duress (it can).
Finally, we have published a note on building information modelling (BIM) and on appointing a professional consultant, updated (with Berwin Leighton Paisner) our suite of materials on the MF forms of contract, explained what the considerate contractors scheme is, told you about some of the issues in contract drafting, discussed delay and concurrent delay, set out some of the issues when enforcing a dispute board’s decision, looked at conditional payments in PFI and PPP projects and considered liquidated damages clauses in contracts relating to the Olympic Games.
