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"The court's decision provides a comprehensive analysis of the HGCRA’s territorial scope and critical insights for construction law practitioners."
Executive Summary
This article examines the recent decision in Van Elle Ltd v Keynvor Morlift Ltd handed down by Mr Justice Stephen Davies. The case centred on whether a contract for the installation of mooring and berthing piles on the bed of a tidal river beyond the low-water line and Ordnance Survey boundaries fell within the jurisdiction of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”). The court’s decision provides a comprehensive analysis of the HGCRA’s territorial scope and critical insights for construction law practitioners. This article focusses on the interpretation of “construction operations in England” and the implications for adjudication proceedings.
Introduction
Adjudication under the HGCRA is a widely used mechanism for resolving disputes in the construction industry. However, the jurisdictional reach of the HGCRA can sometimes be contentious, particularly when the construction operations are geographically ambiguous. The case of Van Elle Ltd v Keynvor Morlift Ltd deals with this jurisdictional question, exploring whether construction operations on a tidal riverbed beyond the low-water mark fall within the ambit of the HGCRA.
Case analysis
Background
In Van Elle Ltd v Keynvor Morlift Ltd, the claimant, Van Elle Ltd (“VEL”) entered into a contract with the defendant, Keynvor Morlift Ltd (“KML”), for the installation of mooring and berthing piles on the bed of the River Fowey in Cornwall. The claimant referred a dispute under the contract to adjudication, which resulted in an award in its favour. KML resisted enforcement of the adjudication award, arguing that the adjudicator lacked jurisdiction since the works did not constitute “construction operations in England” as required by section 104(6) of the HGCRA.
Arguments and judgment
1. Territorial Scope of “Construction Operations in England”
"It underscores the necessity for precise drafting of contracts to clearly delineate the scope of work and its geographical location."
KML contended that because the works were located on the riverbed beyond the Ordnance Survey boundaries and low-water line, they did not fall within “England” for the purposes of the HGCRA. They argued that the piles, being installed below the low-water mark, did not form part of “the land” as defined in section 105(1) of the HGCRA.
Mr Justice Stephen Davies, however, held that the “land” in section 105(1) includes land covered with water, in accordance with the Interpretation Act 1978. The court further concluded that the term “England” in section 104(6) extends to the baseline established by international conventions and orders such as the United Nations Convention on the Law of the Sea (“UNCLOS”) and the Territorial Sea (Baselines) Order 2014. Therefore, the works fell within the territorial scope of the HGCRA.
2. Application of the Interpretation Act 1978
The court affirmed that, unless a contrary intention appears, statutory definitions should be applied. The Interpretation Act 1978 defines “land” to include land covered with water, which Mr Justice Davies found applicable to the HGCRA. This interpretation aligns with the illustrative examples within section 105(1)(b) of the HGCRA, which include docks, harbours, and inland waterways, all of which typically include operations below the low-water mark.
3. Jurisdiction of the adjudicator
The court dismissed KML’s argument that the adjudicator had breached natural justice by not considering all relevant issues. Mr Justice Davies found that the adjudicator had sufficiently addressed the issues raised by KML and that any oversight was not material enough to render the decision unenforceable.
Implications for Construction Contracts
The decision in Van Elle Ltd v Keynvor Morlift Ltd has significant implications for construction contracts, particularly those involving works near or beyond traditional land boundaries. It underscores the necessity for precise drafting of contracts to clearly delineate the scope of work and its geographical location. The judgment also reinforces the broad jurisdiction of the HGCRA, extending its reach to include construction operations on riverbeds and other submerged lands within the defined territorial limits.
Conclusion
The ruling in Van Elle Ltd v Keynvor Morlift Ltd provides clarity on the territorial scope of the HGCRA, affirming that construction operations on lands covered by water, including tidal riverbeds, fall within its jurisdiction. This decision highlights the importance of understanding the geographical applicability of construction contracts under the HGCRA. It also reinforces the need for meticulous contract drafting and the significance of the Interpretation Act 1978 in statutory interpretation.
