Category Archives: Green Property Issues

Compliance with later discredited employer’s specification put contractor in breach of contract’s performance requirement

In The Steel Company of Canada Ltd v Willand Management Ltd [1966] the Supreme Court of Canada held that when:

– a contractor expressly undertakes to carry out work which will perform a certain function in conformity with particular plans and specifications and

– it turns out that the work so constructed will not perform the function

the express obligation to construct work capable of carrying out the relevant function overrides the obligation to comply with plans and specifications.

So, the contractor’s payment claim failed even though it had carried the work out in accordance with plans and specifications provided by the employer which turned out to be defective.

In MT Højgaard A/s v E.ON Climate And Renewables & Ors [2014], in 2006 the Claimant contractor, MT Højgaard a/s (“MTH”) entered into an agreement with the Defendant employers, E.ON Climate and Renewables UK Robin Rigg East Ltd and E.ON Climate and Renewables UK Robin Rigg West Ltd (“E.ON”) for the design, fabrication and installation of the foundations for 60 wind turbine generators (“the turbines”) for the Robin Rigg offshore wind farm in the Solway Firth.

Section 3.2.2, General Design Conditions in the construction contract, contained the following provisions:

“3.2.2.2 Detailed Design Stage

The detailed design of the foundation structures shall be according to the method of design by direct simulation of the combined load effect of simultaneous load processes (ref: DNV-OS-J101). Such a method is referred to throughout this document as an ‘integrated analysis’

The design of the foundations shall ensure a lifetime of 20 years in every aspect without planned replacement.”

In 2004 an independent classification and certification agency called Det Norske Veritas (“DNV”), had produced DNV-OS-J101 (“J101”) as an international standard for the design of offshore wind turbines and grouted connections in particular. However, the value attributed to a variable used in one of the standard’s equations was underestimated by a factor of about 10.

MTH’s designer, Rambøll Danmark A/S (“Rambøll”), like everyone else at the time, did not know of this error when it carried out the design.

In 2009 it was discovered that movement was taking place in grouted connections which had been designed using the standard. It was then that the mistake in the standard’s equation was exposed.

Following the Canadian case discussed above, the Court of Appeal concluded that the words of clause 3.2.2.2 were clear and were not inconsistent with the other terms of the contract or the intentions of the parties as reflected in the rest of the contract.

MTH had assumed full responsibility for design as stated in section 3.1, subject only to a qualification about the life of the coating.

MTH had warranted that the foundations would have a service life of 20 years and E.ON was entitled to rely on that warranty notwithstanding that other parts of the contract had required MTH to design the grouted connections in accordance with J101. Since those connections had failed within 2-3 years, MTH had breached that obligation.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Supreme Court Judgment on Planning & Historic Property Nuisance Claims

The recent Supreme Court case of Coventry & Ors v Lawrence & Anor [2014] involved the claimants’ bungalow which was across some fields from a speedway track and raised a number of issues in the law of private nuisance namely:

How far a defendant may contend that he has established a prescriptive right to commit what would otherwise be a noise nuisance;

The court concluded that you can obtain by long use a prescriptive right to commit what would otherwise be a nuisance by noise, or, in short, to transmit sound waves over neighbouring property.

But you had to ask whether the nature and degree of the activity over a period of at least 20 years, taken as a whole, would make a reasonable person on the receiving end of that noise aware that a continuous right to enjoy making noise was being asserted and ought to be challenged if the plan was to resist it.

Here there were some non fatal gaps in the defendant’s claimed use of the track. However what was fatal to this defence was that they had failed to show that their activities during the 20 years amounted to a nuisance. It was even insufficent to show that the activity has created a noise for 20 years. What had to be established was that the activity had (or a combination of activities had) created a nuisance over 20 years.

How far a defendant to a nuisance claim can rely on the fact that the claimant “came to the nuisance”;

In this case the speedway track had been going since 1976, the year after it got planning permission. Other motor sports and greyhound uses had been added to the planning later. However the claimants had only been there since April 2006 and their predecessors since 1984.

The court said that the victim “coming to the nuisance” was no defence to a nuisance claim. This stemmed from the fact that nuisance is a property-based legal wrong. The right to allege a nuisance ran with the land. So it would be odd if a defendant was no longer liable for nuisance merely because the neighbour had changed, even though his neighbour’s property was still being used the same way.

It followed that it might be a defence for a defendant that an activity had only become a nuisance because the claimant had changed the use of, or built on, their land.

The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality;

Here the court got into most difficulty. The court accepted the initial premise that the defendant’s activities are to be taken into account when assessing the character of the locality. The leading judgment then said that they would however not be acceptable so far as they amounted to a legal nuisance which appears entirely circular.

However it said they would be deemed lawful for those purposes if a court had already awarded damages instead of an injunction in respect of them.

Looking at the judgment the court do not seem to have squared the circle here. Perhaps the test is whether seen against the backdrop of the locality the defendant’s activities stand out as being a legal nuisance to the claimant which the claimant ought not reasonably to be expected to put up with at all, or at any rate without compensation.

How far the grant of planning permission for a particular use can affect that use being a nuisance;

The court adhered to orthodoxy. Granting planning permission did not mean that that development was entirely lawful. It just meant that the public law, public interest hurdle of planning permission had been cleared. Things could be a legal nuisance in the 19th century even when the requirement for planning permission had not existed.

Anyway it would be wrong in principle if a planning authority could deprive a property owner of their right to object to a nuisance, without compensation, when there is no appropriate provision for them getting such compensation in planning laws.

The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance, or whether to award damages instead, and the relevance of planning permission to that issue

Current authorities on this point were inconsistent.

The leading judge said the approach of the courts should be much more flexible than that suggested in some of them. It was entirely a matter for the court’s discretion.

Damages could be based on the loss of value to the claimants’ property caused by the nuisance.

But it was also suggested that damages should not be limited to this if the defendant might have paid the defendant more for a licence to commit the nuisance.

However, the leading judgment said there were factors militating against nuisance damages being assessed based on the benefit to the defendant in no injunction being granted.

As the court had heard no argument on the issue and held differing views, rather than cloud the issue further, the leading judgment said the fairest way to deal with the point was to refuse the defendants permission to raise it, but to hold instead that the judge’s order should contain a proviso that the defendants be free to argue for the judge’s injunction stopping the nuisance noise to be discharged, and damages awarded instead.

The decision whether to award damages instead of an injunction may be dependent on a number of issues, including the behaviour and attitude of the parties The trial judge would be better able to assess these. However the defendants would have to give the claimants sufficient notice of their intention to raise such arguments to enable the claimants to prepare.

However some members of the court indicated that the fact planning permission had been granted would not of itself cause the court to order damages rather than an injunction.

This blog is posted out of general interest. It does not replace tne need to get proper legal advice in individual cases.

Planning Decision Quashed for Failure to have Explicit Regard to Effects on Setting of Listed Buildings

A planning decision maker must attach proper weight to the local development plan as required by Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and must give adequate reasons for departing from it (the Section 38(6) Requirement); and

Where the development might affect a listed building Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the LBA 1990”) requires the decision maker to have special regard to the desirability of preserving the setting of listed buildings (the Listed Building Setting Requirement).

As the following case illustrates there can be problems if the decision maker’s written decision does not make it explicit both factors have been taken into account.

In North Norfolk District Council v Secretary of State for Communities and Local Government & Anor [2014] a wind turbine was to be put up on Cromer Ridge. Some listed buildings were nearby.

The Section 38(6) Requirement

The court said the construction of the development plan policy was a matter of law for the court. The policy supported sustainable development and anti climate change. However, that was supplemented by policy EN7 – that there be neither individually or cumulatively, significant adverse effects, including landscape and historical features or areas.

Here the inspector had concluded that there would be significant effects on landscape and historical assets so that the commitment to grant permission was not engaged. But that did not mean that the policy ceased to support and to require consideration of the proposal’s renewable energy gain. Though those benefits had to be balanced against other considerations, including other policies within the plan. The inspector here had applied the policy in accordance with Section 38(6) of the 2004 Act and was entitled to conclude that, having balanced the benefits of the proposal under policy EN7 as against its adverse implications for landscape and historic assets, the proposal did accord with policy EN7 and overall with the aims of the Development Plan. He may have omitted to refer to another relevant policy EN2, but he was well aware that that harm itself constituted a breach of policy EN2 and the balance that he struck as against the benefits of the proposal took that into account.

So the decision could not be quashed for failure to abide by the Section 38(6) Requirement.

The Listed Building Setting Requirement

The inspector similarly concluded that there would be harm to the building’s setting contrary to the development plan policies, and that overall the proposal would not preserve the setting of that listed building. However, the inspector was able to uphold the proposal because he also concluded that those policies were consistent with the relevant section of the National Planning Policy Framework (“NPPF”), and that any harm would be less than substantial, engaging paragraph 134 of the NPPF, and that again the public benefit would outweigh the harm.

But whatever account he took of the NPPF the court did not find anything in the inspector’s reasoning to indicate that he had applied the statutory requirement to have special regard to the desirability of preserving the setting of listed buildings. Instead the inspector appeared to have balanced the relative harm and benefit as a matter of straightforward planning judgment without applying the special regard required under Section 66(1) of the LBA 1990.

Thus he treated the balance under paragraph 134 of the NPPF as the same exercise as that in respect of the landscape effects.

The statutory language of Section 66(1) of the LBA 1990 went beyond that and treated the preservation of the setting of a listed building as presumptively desirable. So, if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm.

Section 66(1) of the LBA 1990 created a presumption against permission or a requirement for strong countervailing reasons for its grant

Here the problem was that the inspector did not have express regard to the statutory duty but applied a simple balancing exercise under paragraph 134 of the NPPF. There was no way of knowing how that balance would or might have been affected if he had had special regard to the desirability of the preservation of the settings. He could still have come to the same overall decision, but the court could not say that would inevitably been the case if he had in fact taken the statutory requirement into account. So the inspector’s decision on appeal was quashed.

This blog has been posted out of general interest. It does not remove the need for proper legal advice in individual cases.