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Britain has been awash for months with debate about the potential impact should Britain vote for Brexit when the referendum finally takes place on 23 June 2016.
But what of the planning and development landscape? While the short-term impact is likely to be negligible, things could begin to look very different in the longer term.
The EU’s main impact on the planning and development regime comes as a result of its policies on the environment and climate change. The Lisbon Treaty requires the EU itself and its member states to pursue policies designed to protect the environment and promote energy efficiency. The aim is not just to protect natural resources and human health but also to promote a level playing field within the single market by ensuring as far as possible that the regulatory impact is felt evenly by each member state.
These twin ambitions are given effect through a series of directives, which, in turn, have been incorporated into English and Welsh law by a series of Regulations, most notably:
The SEA, EIA and Habitats Regulations also give effect to the public’s Aarhus Convention right to take part in decisions that affect the environment, including requiring public authorities to actively disseminate the environmental information on plans and developments.
This regime of controls has undoubted benefits in encouraging less environmentally damaging proposals, promoting greater energy efficiency and in involving the public in those decisions. However, in pursuing those aims, it also contributes to delay and costs, which, in economically constrained times, can mean that development doesn’t move ahead.
These delays not only affect planning applications but also the public sector’s ability to quickly adapt policy to changing circumstances. For example, Eric Pickles’ decision in 2010 to abolish by order all regional spatial strategies to give effect to the Coalition Government’s commitment to “rapidly… return decision making powers on housing and planning to local councils” came unstuck because, among other reasons, the decision had not been subject to an assessment under the SEA Regulations.
From a developer’s perspective, legal challenges to unpopular development proposals alleging breaches of the EIA regulations have become so common that local authorities and developers now start with a defensive mind-set. The resulting, leviathan environmental impact assessments can run to hundreds - and even thousands - of pages, much of which will be dedicated to showing that even the most obscure and unlikely impact has been properly considered and ruled out. Preparing and assessing these documents is expensive and time-consuming for both developers and local authorities.
Even once planning permission is secured, the energy performance requirements in the Building Regulations impose additional constructions costs. The Performance of Buildings Directive (2010/31/EU) requires all new homes to be constructed to 'Nearly Zero Energy Building' standards by 2021. The government originally intended to achieve this by gradually tightening the Building Regulations so that all new homes would be Zero Carbon (formerly Code level 6) by 2016. That ambition was abandoned in July 2015 in the Treasury paper entitled “Fixing the Foundations”. At the moment, it remains unclear exactly how or when the government expects to meet the Nearly Zero Energy Building standards.
While the UK remains within the EU, many EU parent directives are directly enforceable against public authorities in the UK Courts, and hence little can change. However, if the UK leaves the EU, the directives will be swiftly consigned to the dustbin and the government could amend or even abolish the various regulations. Changing those regulations would also free the UK courts to move on from earlier precedent rulings that gave effect to the European Court of Justice’s interpretation of the various directives.
If the immediate economic outlook during and after any Brexit is uncertain, a bonfire of the SEA, EIA and Habitats Regulations and of parts of the Building Regulations will be attractive. Nonetheless, it is unlikely.
Although the regime is not beloved of policy-makers nor developers alike, it does ensure that environmental considerations are firmly in view when planning decisions are made and that the public can have its say. As such, it is bound to enjoy popular support and it will take a brave government to make an immediate and clean break.
The more likely approach to change is likely to be a gradual shift. For instance, we may see further tinkering with the thresholds above which regulations start to apply and perhaps further exemptions for SME developers. However, even an incremental approach of that sort carried out over a number of years could still leave us with a planning system that looks very different from today.
The real challenge, should the electorate vote for Brexit this summer, would be to ensure the benefits of the current regime - environmental protection, public engagement and the like - are preserved while simultaneously paring back any unnecessary elements. A post-Brexit government will need to be very careful not to throw the baby out with the bathwater.
Welcome to the further edition of DAC Beachcroft's Adjudication Adviser
This edition of the Adjudication Adviser focuses on two important Court of Appeal decisions and a useful case on the difficulty that adjudicators face in determining contracts within a very short period of time. The amendments to the Construction Act bought the issue of determining oral, part oral and what is the contract into the realm of adjudication and the case of Mi-Space is a cautionary tale. The two Court of Appeal cases follow on from ISG v Seevic and Galliford v Estura and the issue of two disputes.
To read the newsletter in full, click download below.
The Modern Slavery Act (the "Act"), which came into effect in October 2015, is aimed at tackling the global problem of slavery and human trafficking. It requires certain commercial organisations to prepare and publish a 'slavery and human trafficking' statement ("SHT Statement") each financial year.
In 2013, 53 workers in the construction industry were identified as possible victims of modern slavery.
The complex nature of construction industry supply chains, which can involve a number of contractors, consultants and large teams of workers in the UK and abroad, mean that it is possible that incidents of modern slavery are in fact much higher, and that incidents of modern slavery and illegal working may be taking place unwittingly. The sheer number of people involved in construction projects may make it more difficult to police these issues.
Your industry is already under scrutiny. The Home Office recently launched a campaign to crack down on businesses employing illegal workers and we are aware of an increasing number of unannounced visits to construction sites by Home Office Enforcement Officers seeking to identify any illegal workers working on site. It is vital that you consider your obligations under the Act and take steps to comply.
The Act empowers the Secretary of State to enforce the duty to produce a SHT Statement via injunctive proceedings in the High Court against those organisations failing to comply. Of greater concern, however, are the indirect implications for construction organisations which fail to publish the required SHT Statement, or which publish a SHT statement indicating that no action has been taken to minimise the incidence of modern slavery in its business or supply chain. These include:
For more information on the new requirements, or if you would like assistance generally with immigration issues, please direct any queries to Emma Morgan or Rachael Davidson in our dedicated Business Immigration Unit, in the first instance, who will be pleased to assist.
Yesterday's judgment should serve as a caution to any successful party in an adjudication. The Supreme Court has confirmed the Court of Appeal decision as to when any claim should be brought to review an adjudicator's decision.
Although the limitation period for the original claim pursuant to the contract may have expired the unsuccessful party in an adjudication can still bring proceedings for recovery up to 6 years after payment is made.
However a successful party will be time barred from commencing proceedings to confirm the adjudicator's decision or to seek further sums.
In this instance the Court found that Higgin's should have commenced legal proceedings to have the dispute finally determined within the limitation periods applicable to its claims.
Click download to read more about this judgment now.
In addition to those covered in our Alert last week for Health employers on the UK Shortage Occupation List changes and the new NHS surcharge, a number of key changes to the immigration rules came into effect on 6 April 2015.
The Construction (Design and Management) Regulations 2015 (SI 2015/51) (CDM 2015) come into force on 6 April 2015. CDM 2015 replaces the Construction (Design and Management) Regulations 2007 and significantly changes the old regime.
What Are The Changes?The CDM Regulations 2015 introduce important changes including:
Replacement of the CDM Co-ordinator RoleThe CDM Co-ordinator role is to be replaced by a new role of 'Principal Designer' which will include an element of influence over design. It is intended that the Principal Designer sits within the project team rather than being outsourced to an external consultant. Don't be surprised if a Principal Designer seeks higher fees than you are used to paying a CDM Co-ordinator, because of the changed role and also concern about how the HSE will interpret the role.
Increased Health and Safety Responsibilities for ClientsThe removal of the role of the CDM Co-ordinator will have an impact on the client who is losing his key advisor. Clients will be responsible for:
The following transitional arrangements have been put in place to run for six months from 6 April 2015 to 6 October 2015:-
Immediate considerationsWhere you have any design, construction or building works starting before 6 April 2015 you should consider the following:
The JCT have just issued Amendment 1 which should be incorporated when using their standard 2011 form of building contracts (available at JCT Amendment 1: CDM Regulations )
For further information, we attach the helpful guidance produced by the Construction Industry Training Board called Industry Guidance for Clients. Final guidance from HSE is expected to be made available on 6 April 2015.
In the courts' first scrutiny of the "new" payment regime under the updated Construction Act, the Technology and Construction Court ("TCC") held that the lack of a payment notice meant that the employer had agreed the value of the works claimed in the interim certificate. Employers must take note!
The FactsISG Construction Ltd (the contractor) and Seevic College (the employer) entered into a JCT Design and Build Contract, 2011 Edition. The parties agreed that the contractor's interim applications for payment would be made at monthly intervals.The contractor submitted interim application 13 for £1,097,696. The employer did not serve a payment or a pay less notice in response, but did not pay anything either.
The First and Second AdjudicationsThe contractor referred the dispute over interim application 13 to adjudication. The adjudicator (Mr Juniper) decided that the contractor was entitled to £1,097,696 plus interest.The employer served a second notice of adjudication, four days before the decision from the first adjudication. The employer asked the second adjudicator (also Mr Juniper) to value the contractor's works as at the date of interim application 13. The adjudicator decided the value of the works was £315,450. Assuming the employer had paid the sums awarded in the first adjudication, he awarded a repayment from the contractor to the employer of £768,525.DecisionThe TCC held that in the absence of a payment or pay less notice issued in time by the employer the contractor becomes entitled to the amount stated in the interim application irrespective of the value of the works actually carried out. As the first adjudicator had decided the sum claimed was the sum due to the contractor (and so had decided the value of the works), the second adjudicator was asked to decide the same dispute, which meant he lacked jurisdiction. The contractor's summary judgment application (in respect of the first adjudicator's decision) and the declaratory relief application (relating to the second adjudicator's decision) were both successful. CommentThis judgement reinforces the importance that employers or their advisers closely follow the payment requirements set out in the contract (or if such requirements do not exist to follow the requirements set out in the Act), especially if they disagree with the amounts sought in any payment notice.Had Seevic issued a Payment Notice disputing the sum claimed by ISG it may have been the case that Seevic would only have had to pay circa £300,000 to ISG. As it was, Seevic did not issue the requisite notice and, as a direct result, they had to pay the full amount to ISG as well as ISG’s costs of the application for summary judgment.An employer should always have in mind the dates by which Payment Notices and Pay Less Notices must be served to avoid being bound by the sum specified in the contractor’s application for payment.Prior to this decision, an adjudication brought by a contractor solely upon a technicality (e.g. failure to serve a notice) in many cases prompted the employer to launch an immediate counter-adjudication, seeking a valuation of the relevant application on its merits.The TCC felt that this practice completely undermined the Act's payment regime and has put a stop to it by finding that a failure to serve a pay less notice was an agreement by the employer of the value of the application.If the employer wishes to try to redress the position, it must now wait until the next interim application or final certificate. Of course, by that stage, the earlier adjudication award may have been enforced and the relevant monies paid out to the contractor.
Happy New Year to all our readers. We hope you enjoyed the festive break. 2015 is likely to be a busy year for HR professionals and employment lawyers: shared parental leave and pay becomes available on 5 April and a range of employment issues will be debated in the run up to the general election.
Welcome to the Fifth Edition of DAC Beachcroft's Adjudication Adviser.
In our last update we focussed on a number of Scottish decisions, not least as it appeared that enforcement proceedings were starting to slow down and the process being readily understood and accepted by parties. Since then there have been a number of decisions which have focussed on some very important aspects of adjudication and how the Housing Grants, Construction and Regeneration Act 1996 (as amended) should operate. Key issues which this updater focusses on; is how to ensure that the same dispute is not adjudicated twice and the application process.
I wish everyone a Merry Christmas and a prosperous New Year.
By way of a Judgment given on 3 December 2014 in ISG Construction Ltd v Seevic College  EWHC 4007 (TCC), the Court has underlined, if we did not already know, the importance of contractual payment notices.
Welcome to the First Edition of our Construction Professionals Newsletter. Articles in this edition:
In the period since our last Adviser, surprisingly, there have been few reported adjudication enforcement cases. This Adviser therefore looks outside of the jurisdiction of England and Wales to Scotland and Malaysia to see how our rules and case law have been adopted elsewhere.
Whilst it is not unusual for Scottish adjudication matters to refer to English cases, three recent Judgments show the extent that those Courts will look to uphold the right of adjudication. Notably these cases follow very closely to English precedent. It is arguable that this demonstrates that our system of adjudication appears to be working albeit, sometimes, in a rough and ready manner. Malaysia has become the latest jurisdiction following New Zealand, Singapore and a number of Australian states to adopt statutory adjudication as a dispute resolution method. One of articles provides a very brief review of the rules, which can be seen to be very similar to the UK.
For an aggrieved unsuccessful bidder, bringing a procurement challenge requires fast action in circumstances where the bidder may not be able to point to each and every breach of the Public Contracts Regulations 2006, and is often acting with little more than a feeling that something was not quite right with the process.
This month we've had a couple of helpful judgments concerning whistleblowing. Both look at the topic of whether an employee had been subjected to a detriment because they had blown the whistle. Both of the cases highlight that employment tribunals can and should make distinctions between alleged protected disclosures themselves and the steps taken by the employer to deal with the disclosures and/or to manage the employee who has made them.
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