The claimant agreed with the defendant to install mooring and berthing piles on the bed of a tidal river, below the low water line, to be used to moor pontoons and vessels. In the wake of a dispute arising out of the final value of the works, the claimant referred the matter to adjudication under section 108 of the Housing Grants Construction and Regeneration Act 1996. An award was subsequently issued in the claimant’s favour, which it sought to enforce by way of an application for summary judgment. Resisting the application, the defendant submitted that as the works had taken place in a location beyond Ordnance Survey boundary lines, they did not constitute a construction operation “in England” within the meaning of section 104(6) of the 1996 Act, nor could works on the seabed beyond the low water mark be described as taking place on “the land” within section 105(1) of the 1996 Act. Therefore, the parties’ contract was not a “construction contract” within the meaning of Part 2 of the 1996 Act, which meant that no right to refer the matter to adjudication under section 108 of the 1996 Act had arisen and, accordingly, the adjudicator had lacked jurisdiction to hear the dispute.
On the application for summary judgment—
Held, application granted. There was no good reason to consider that it was Parliament’s intention to exclude from the 1996 Act construction operations carried out downstream of a notional dividing line adopted by those responsible for the Ordnance Survey map. For the purposes of section 104 of the 1996 Act the baseline at which England ended was, in accordance with article 9 of the United Nations Convention on the Law of the Sea as set out in Schedule 1 to the Territorial Sea (Baselines) Order 2014, a straight line across the mouth of a river, between points on the low-water line of its banks, where the river mouth met the territorial sea. References to “the land” in section 105(1) included land covered by water and, hence, land covered by inland waters up to the baseline which, in the case of rivers such as the one in issue, extended up to its mouth. It was therefore not realistically open to the defendant to argue that the contract for piling works was not a contract for construction operations “in England” or on “the land”. Accordingly, and other aspects of the adjudicator’s decision not constituting a breach of natural justice, his decision would be enforced (paras 11, 67, 68, 75, 76, 77, 89, 94, 97, 100).
James Frampton (instructed by DAC Beachcroft LLP, Newcastle upon Tyne) for the claimant.
Andrew Stevens (instructed by Adams & Moore Solicitors LLP) for the defendant.