Re-drawing the line

The Construction Act makes bizarre distinctions between what does and does not fall within its payment and adjudication provisions. Pencils out, everyone

"When parliament comes to rewrite the Construction Act, its first priority is to write it in a language that six plasterers, not six lawyers, understand"

One day, maybe when the war is over, we can do two things about the Construction Act. First, we can elect half-a-dozen plasterers to be members of parliament. Second, we can then amend the Construction Act itself. Yes, yes, I know we are about to amend "the scheme", but the time is coming when we must change the act itself. There are parts that are not working well, parts that are badly written and parts missing. And when it comes to be rewritten, the first priority is for parliament to remind itself that this act is for the construction industry to use. It must be in a language that our six plasterers – not their six lawyers – understand.

It was utter poppycock for the act to say that when buildings or building works do not "form part of the land" none of the payment or adjudication provisions apply. The reason is that the building industry, the user of the act, hasn't a clue what that phrase means. What's more, the courts have been wrestling with its meaning since 1837. When the phrase was the subject of a House of Lords case in 1997, it took umpteen judges to decide whether a timber-framed bungalow sitting on strip concrete foundations formed part of the land. Come on, please. If it still takes all that brainpower to fathom what the phrase means, why, oh why, can't we find a better set of words?

The shop fittings mentioned by Tim Elliott in Gibson Lea Retail Interiors vs Makro Self Service Wholesalers (Building, 12 October, page 54) were outside the whole adjudication business because islands and stands bolted to the concrete floor are not part of the land. Let's go further; if it is so difficult to understand what the phrase means, why have it at all? Let's chuck it out.

I will tell you a secret. The only reason the words are in the act is because of a mistake by Lord Lucas when the bill was on its way through the parliamentary thickets. He boobed when explaining the difference between goods merely supplied and those supplied and fixed. The contractors had told parliament not to extend the adjudication and payment rules to the supply-only side of building.

 The troubled parts of the building business comprise quarrelling putter-uppers, quarrelling designers or quarrelling designers and builders. So, the contractors told parliament to help out by merely dealing with supply and fix, supply and install and supply and lay contracts. Lucas gave the impression that goods forming part of the land meant goods supplied and fixed. But there are loads of things supplied and fixed that do not become part and parcel of the property and therefore form part of the land. Curtain rails, mirrors, bookshelves or racks are hardly intended to be part of the structure, yet they are supplied and fixed. Carpet which is rolled out is not a fixture but carpet tiles in office blocks fixed with adhesive are likely to form part of the structure. What I think Lucas wanted was to bring into the Construction Act anything that required labour to install. It must be doubted that he wanted the confounded phase "to form part of the land".

And that's why I want six plasterers to become members of parliament. They will quickly remind legislators of the twofold purpose of the act: to resolve or manage disputes swiftly but provisionally and to regulate interim payments in that part of industry where the friction occurs. The overall idea was to promote better relationships. I am blowed if I can honestly say that those who supply and install shop fittings are any less prone to the friction that comes with refurbishing a shop or supermarket than those who lay the floors, fix the ceilings, install the lights or do the plastering. But those shop fittings are outside the act, even though they are supplied and fixed, whereas the suspended ceilings and partitions in shops are within. The six plasterers would say that that is daft.

And while we are at it, why, oh why, is structural steelwork supplied and erected in a factory that makes pharmaceuticals or food or drink outside the Construction Act, while steelwork for a warehouse that stores pharmaceuticals or food or drink, is within? There is an unreality about parliament sometimes, or perhaps it just isn't in touch with the construction industry. Let's hope they get the war right.

Readers are invited to forward recent judgments for reporting in this column (with full acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX:007I LDE

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